United States Court of Appeals
For the First Circuit
No. 04-1755
UNITED STATES OF AMERICA,
Appellee,
v.
JEAN BRITO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Catherine K. Byrne, Federal Defender Office, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
October 20, 2005
SELYA, Circuit Judge. In Crawford v. Washington, 541
U.S. 36 (2004), the Supreme Court barred the admission of
testimonial hearsay in a criminal case under circumstances in which
the accused has not had an opportunity to cross-examine the
declarant. This ruling effected a sea change in the jurisprudence
of the Confrontation Clause — but the Court left open the
parameters of testimonial hearsay, and so its ruling produced a
miasma of uncertainty. We enter this murky milieu to answer a
question of first impression in this circuit: under what
circumstances should an excited utterance made to a police officer
(in this case, a 911 operator) be considered testimonial?
Although the question is close, we conclude that, in the
circumstances at hand, the excited utterance was nontestimonial
and, therefore, properly admitted into evidence. We also reject
the defendant's other challenges to his conviction and sentence.
Consequently, we affirm the judgment below.
I. BACKGROUND
In the early morning hours of February 9, 2003, gunshots
rang out in the parking lot of Boomer's, a saloon in Brockton,
Massachusetts. At that time Robert Manoli, who was working late in
his nearby office, peered out the window and saw a hat-wearing
black man load a clip into a gun. As the man walked away, Manoli
dialed 911 and reported his observations. The 911 operator
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dispatched Brockton police officers Steven Johnson and Scott Landry
to the scene.
Immediately thereafter, a second 911 call came through.
The caller, an anonymous woman, asked if she was talking to the
Brockton police. When the 911 operator responded affirmatively,
the following dialogue ensued:
Caller: Listen to me. I just
seen a man with a gun
in his hand. It's at
that club called
Boomers. There was a
shooting there just a
second ago. He has
on a black cap with a
black leather coat.
I can't quite
remember the color of
his sweater. But I
was just saying to my
son when I was
getting in the car
that I didn't come to
Brockton to die. And
when I was pulling
out and backing out
driving down the
street, he pointed a
gun at me and acted
like he was shooting
at my car.
Operator: Is he a black man?
Caller: Yes, he is a black
man. He has on a
baseball cap, he
looks like he might
be between the height
of 5'8" and 5'10".
But he's there right
now, he's standing in
between like two
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buildings. He's
basically on Perkins
Ave., right beside
[the club Boomers].1
Operator: Okay, we're on our
way down there. I'll
tell the officers to
look for a guy with a
black cap, black
leather coat, about
5'8".
Caller: Yes, please do. [H]e
has the coat
unzipped. And it
looked like a nine
millimeter. I could
be wrong but it
looked like a nine.
The 911 operator relayed the augmented description of the suspect
to Johnson and Landry (who were en route to Boomer's). When the
officers were about a block away, they saw a 5'8" black male,
wearing a black hat and jacket, standing next to the open passenger
door of a car. The man's right hand was hidden inside his unzipped
jacket, as if he were holding something.
The man spied the policemen and fled. His right hand
remained inside his jacket. Officer Johnson gave chase. While he
was in hot pursuit, his quarry threw away a 9 millimeter pistol.
The pistol slid off a snow-covered roof and landed on the ground
near Johnson's feet. Johnson radioed his dispatcher to report the
location of the gun and continued the chase.
1
The transcript used as an aid at trial excluded the bracketed
words, but they are audible on the tape itself.
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Within a matter of seconds, Johnson tackled the fleeing
man (later identified as defendant-appellant Jean Brito). Assisted
by two newly arrived detectives, Johnson took the suspect into
custody. The police then retrieved both the gun and the suspect's
hat (which had fallen during the chase). The police also found
shell casings and an empty magazine clip near the parking lot. The
shell casings matched the retrieved pistol.
On March 26, 2003, a federal grand jury indicted the
appellant on one count of possession of a firearm by a convicted
felon and one count of possession of a firearm by an illegal alien.
See 18 U.S.C. § 922(g)(1), (g)(5)(A). The only issue at trial was
whether the appellant possessed a gun (he stipulated that he was
both a convicted felon and an illegal alien). The government's
case in chief consisted of Manoli's testimony, the tape of his 911
call, and the testimony of various police officers who had been
involved in the investigation. That evidence tracked the factual
account set out above.
The appellant testified in his own behalf. He said that,
earlier in the day, he had purchased a gold chain from two men in
a bar. Shortly thereafter, two other men confronted him. One of
them claimed to own the chain and demanded its return. The
appellant offered to sell it to the alleged owner. The latter, who
did not have sufficient funds to effect a purchase then and there,
took down the appellant's contact information.
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Around 1:00 a.m., the same man showed up in Boomer's
parking lot with three compatriots. They invited the appellant to
enter their car, but he refused. As the appellant turned to walk
away, he heard gunshots. That prompted him to run and hide in some
nearby bushes. He remained in hiding until he heard police sirens.
At that point, he emerged from the bushes, only to be tackled by
police officers and arrested. He denied that a chase had occurred.
He also denied that he had a pistol in his possession at any time.
On cross-examination, the government sought to use the
appellant's three prior felony drug-trafficking convictions for
impeachment purposes. When the appellant objected, the trial
court, at sidebar, proposed that the government be allowed to
inquire as to the number of felony convictions without describing
the crimes. Defense counsel refused this compromise and suggested
that the government be limited to asking whether the appellant had
"committed a crime" on a certain date. The court rejected this
approach, overruled the objection, and offered the appellant a
choice: in referring to the prior convictions, the government
either could use the word "felony" or could name the charge.
Defense counsel refused to choose. The court then ruled that the
government, in its cross-examination, could identify each charge.
Cross-examination proceeded. Defense counsel belatedly
asked the court to circumscribe the government's references to the
prior convictions so that only the word "felony" would be used.
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The court demurred, saying that the attorney had been given that
option but had failed to exercise it in a timely manner. The
prosecutor then established that the appellant had been convicted
on three separate occasions in 1994 — once for distribution of a
controlled substance and twice for possession of controlled
substances with intent to distribute.
After the defense rested, the government sought to
introduce the anonymous 911 tape as part of its rebuttal case. The
appellant objected on hearsay and Confrontation Clause grounds.
The court redacted the tape to exclude the caller's description of
the pistol and allowed the remainder of the tape into evidence
under the "excited utterance" exception.2 Because Crawford had not
yet been decided, the district court's overruling of the objection
comported with the then-prevailing view of the Confrontation
Clause, which permitted the admission in a criminal case of an out-
of-court statement of an unavailable witness as long as it fell
"within a firmly rooted hearsay exception" or otherwise bore
"particularized guarantees of trustworthiness." Ohio v. Roberts,
448 U.S. 56, 66 (1980). The court found that the main portion of
the 911 tape qualified as an excited utterance and that the
exception for excited utterances was a firmly rooted hearsay
2
The government initially had indicated an intention to offer
the tape of the anonymous 911 call during its case in chief. The
parties' arguments were aired fully at that time, and the district
court previewed the basis for its eventual ruling.
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exception. See Fed. R. Evid. 803(2) (confirming that exception and
defining an excited utterance as a "statement relating to a
startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition"); Puleio v.
Vose, 830 F.2d 1197, 1206 (1st Cir. 1987) (classifying the hearsay
exception for excited utterances as "firmly rooted").
At the conclusion of the trial, the court gave a
carefully phrased instruction making clear that the prior felony
convictions were relevant only insofar as they bore on the
appellant's credibility. The appellant did not take exception to
this, or any other, portion of the court's charge. The jury found
the appellant guilty on both counts. The district court
subsequently imposed a 210-month incarcerative sentence. This
appeal followed.
II. ANALYSIS
We divide our analysis into three parts, corresponding
with the appellant's three assignments of error.
A. The Anonymous 911 Tape.
The appellant's primary contention is that the redacted
tape of the second 911 call should not have been admitted into
evidence as he was not able to confront and cross-examine the
anonymous speaker. This contention derives from the Sixth
Amendment, which provides in pertinent part that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
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confronted with the witnesses against him." U.S. Const. amend. VI.
In Crawford, decided approximately one month after the jury verdict
in this case, the Supreme Court fundamentally altered the
jurisprudence of the Sixth Amendment and took a new approach to
determining whether the admission, in a criminal case, of an out-
of-court statement by an unavailable declarant violates an
accused's right of confrontation. See Horton v. Allen, 370 F.3d
75, 83 (1st Cir. 2004).
Pertinently, the Crawford Court decreed that, as to
"testimonial" statements, the Confrontation Clause assures a
procedural right to confrontation rather than a substantive
guarantee of evidentiary reliability. See Crawford, 541 U.S. at 61
(holding, with respect to such statements, that the Confrontation
Clause demands "not that evidence be reliable, but that reliability
be assessed in a particular manner: by testing in the crucible of
cross-examination"). As to such statements, the Crawford Court
derided the rule of Roberts, which it characterized as
"[d]ispensing with confrontation because testimony is obviously
reliable," as being "akin to dispensing with jury trial because a
defendant is obviously guilty." Id. at 62.
The Court limited its critique of Roberts and its freshly
minted procedural right to testimonial statements, basing this
limitation upon an examination of both the historical background
and the text of the Confrontation Clause. See id. at 43-51. It
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offered no precise definition of which statements were to be
regarded as testimonial and which were not. Instead, it observed
that the answer to that question would depend heavily on the nature
and context of a given statement. See id. at 51 (noting that an
"accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an
acquaintance does not").
The Court then enumerated, for illustrative purposes, a
trio of formulations that came within the "core class" of
testimonial statements. Id. at 51-52. We rehearse these
illustrations.
The first formulation encompasses "ex parte in-court
testimony or its functional equivalent — that is, material such as
affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used
prosecutorially." Id. at 52. The second encompasses
"extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions." Id. at 51-52 (citation and internal quotation marks
omitted) (alteration in original). The third encompasses
"statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial." Id. at 52 (citation and
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internal quotation marks omitted). In the Court's view, these
three formulations all shared a common conceptual nucleus and
mapped out the coverage of the Confrontation Clause at differing
levels of abstraction around that nucleus. See id.
The Court went on to note that these formulations
overlapped and that some statements might fall within any plausible
definition of "testimonial." Id. A statement made during grand
jury testimony is an example of this phenomenon. Id. So, too,
statements given in response to police interrogation would qualify
under any of the Court's stated formulations. Id. In this regard,
the Court cautioned that it used the term "interrogation" in its
colloquial sense, but hastened to add that a statement "knowingly
given in response to structured police questioning" would qualify
"under any conceivable definition" of interrogation. Id. at 53
n.4.
Against this backdrop, the appellant asseverates that the
entirety of the statements made during the anonymous 911 call
should be deemed testimonial (and, thus, inadmissible) because the
caller knowingly contacted the police to furnish information about
a crime.3 He invokes the third Crawford formulation and posits
that an objectively reasonable caller would have understood that
her statements would be available for use at a later trial. His
3
On appeal, the appellant does not challenge the district
court's finding that the second 911 call qualified as an excited
utterance.
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fallback position is that, at the very least, the statements
following the 911 operator's initial question should be considered
testimonial because that portion of the colloquy was the product of
police interrogation. We review de novo the question of whether or
not a given statement, in context, should be deemed testimonial.
See United States v. Tse, 375 F.3d 148, 159 (1st Cir. 2004); see
also United States v. Perez-Ruiz, 353 F.3d 1, 11 (1st Cir. 2003).
The Supreme Court's illustrative formulations suggest
that a 911 call that does nothing more than impart a factual
account of past criminal activity would constitute testimonial
hearsay. After all, the police record and preserve incoming 911
calls for, among other things, potential prosecutorial use. Most
people not only understand this fact but also understand that
because 911 is a pathway to contacting the police in emergency
situations, such communications are to be taken seriously. Cf.,
e.g., N.H. Rev. Stat. Ann. § 106-H:13 (criminalizing the purposeful
reporting of false information to a 911 dispatcher). Emphasizing
these facts, many courts have classified 911 calls of this nature
as functionally equivalent to formal statements to the police.
See, e.g., United States v. Arnold, 410 F.3d 895, 903 (6th Cir.
2005); People v. Cortes, 781 N.Y.S.2d 401, 405-06 (N.Y. Sup. Ct.
2004); see also Richard D. Friedman & Bridget McCormack, Dial-In-
Testimony, 150 U. Pa. L. Rev. 1171, 1242 (2002).
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At first blush, it may seem that the anonymous 911 call
at issue here fits this mold. We think not. Although the call
provided a detailed report of criminal activity (including a
description of the suspect and information as to his whereabouts),
there is more to the story. The district court supportably found
that the call qualified as an excited utterance. In this instance,
that fact makes a dispositive difference.
The case law in this nascent field is muddled as to
whether excited utterances may or may not be classified as
testimonial hearsay. The decisions fall into three camps. We
briefly describe each such line of authority.
Some courts take the view that excited utterances never
can constitute testimonial hearsay. Their rationale is that, by
definition, an excited utterance is made under the influence of a
startling event and, thus, the declarant acts in response to that
event rather than in response to interrogation or in anticipation
of bearing witness. See, e.g., United States v. Brun, 416 F.3d
703, 707 (8th Cir. 2005) (holding that excited utterances are not
testimonial in nature because they are "emotional and spontaneous
rather than deliberate and calculated"); People v. Moscat, 777
N.Y.S.2d 875, 880 (N.Y. Crim. Ct. 2004) (holding that an excited
utterance is a cry for help and, therefore, not functionally
equivalent to "a formal pretrial examination"). In each of these
cases, the court upheld the admission of an "excited" 911 call in
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a criminal trial notwithstanding the declarant's unavailability.
See Brun, 416 F.3d at 707; Moscat, 777 N.Y.S.2d at 880.
A second cluster of cases holds that the excited nature
of the utterance has no bearing on whether a particular statement
is testimonial. These courts effectively discount the excited
nature of the utterance and focus instead on the declarant's
objectively reasonable expectations. See, e.g., Arnold, 410 F.3d
at 903 (holding that, notwithstanding the excited nature of a 911
call, the declarant reasonably could expect that statements
describing the crime and the perpetrator would be used
prosecutorially); Cortes, 781 N.Y.S.2d at 415 (holding that all
"[c]alls to 911 to report a crime are testimonial," even if they
also qualify as excited utterances, because "the purpose of the
information is for investigation, prosecution, and potential use at
a judicial proceeding"). In each of these cases, the court ruled
inadmissible in a criminal trial an "excited" 911 call due to the
declarant's unavailability. See Arnold, 410 F.3d at 904; Cortes,
781 N.Y.S.2d at 416.
A third cadre of courts recognizes that the excited
utterance inquiry and the testimonial hearsay inquiry are distinct
but symbiotic; the startling event that gives rise to an excited
utterance informs the Confrontation Clause analysis and often
dissipates the very qualities of a statement that otherwise might
render the statement testimonial. See, e.g., Arnold, 410 F.3d at
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914 (Sutton, J., dissenting) (reasoning that a frightened 911
caller rarely will have the state of mind needed to make a "solemn
declaration" or a statement that he or she "would reasonably expect
to be used prosecutorially"); State v. Wright, 701 N.W.2d 802, 811
(Minn. 2005) (finding 911 call nontestimonial when declarant was
"trembling, stuttering, crying [and] hyperventilating during the
call") (internal quotation marks omitted) (alteration in original);
State v. Hembertt, 696 N.W.2d 473, 483 (Neb. 2005) (holding excited
utterances made to officers during an ongoing threat to be
nontestimonial because those utterances were "not made in
anticipation of eventual prosecution" but "to assist in securing
the scene and apprehending the suspect"); Drayton v. United States,
877 A.2d 145, 149-50 (D.C. 2005) (similar). This approach suggests
that courts must undertake a case-by-case examination of the
totality of the circumstances in order to determine whether or not
a particular excited utterance should be deemed testimonial in
nature.
We reject both per se approaches — the one that
automatically exempts all excited utterances from classification as
testimonial hearsay and the one that effectively disregards the
excited nature of an utterance. Rule 803(2) allows the admission
of excited utterances based on the theory that a person speaking
about a startling event, while still under the stress of
experiencing or observing that event, normally does not have either
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the capacity or the incentive to prevaricate. See, e.g., United
States v. Taveras, 380 F.3d 532, 537 (1st Cir. 2004). It makes
very little sense, then, to impute a calm and reasoning state of
mind to every such declarant. It does not necessarily follow,
however, that just because a statement falls within the literal
definition of an excited utterance, the declarant must have lacked
the ability to recognize that the statement could be used for
prosecutorial purposes. See, e.g., Lopez v. State, 888 So.2d 693,
699-700 (Fla. Dist. Ct. App. 2004) (acknowledging that a
declarant's excited state "has a bearing on his expectation
regarding the potential use of his statement in court" but
nonetheless finding the excited utterance in question testimonial).
A wide variety of situations can give rise to excited utterances.
If, say, the utterance is removed in time from the startling event,
it might qualify as excited, see, e.g., United States v. Scarpa,
913 F.2d 993, 1017 (2d Cir. 1990), but still might be considered
testimonial. Cf. Crawford, 541 U.S. at 58 n.8 (implying that a
statement of a child victim elicited during after-the-fact police
questioning was testimonial despite the fact that it was a
"spontaneous declaration").
We therefore reject the categorical approaches that lie
at either end of the spectrum. Instead, we conclude that the
excited utterance and testimonial hearsay inquiries are separate,
but related. While both inquiries look to the surrounding
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circumstances to make determinations about the declarant's mindset
at the time of the statement, their focal points are different.
The excited utterance inquiry focuses on whether the declarant was
under the stress of a startling event. The testimonial hearsay
inquiry focuses on whether a reasonable declarant, similarly
situated (that is, excited by the stress of a startling event),
would have had the capacity to appreciate the legal ramifications
of her statement.
These parallel inquiries require an ad hoc, case-by-case
approach. An inquiring court first should determine whether a
particular hearsay statement qualifies as an excited utterance. If
not, the inquiry ends. If, however, the statement so qualifies,
the court then must look to the attendant circumstances and assess
the likelihood that a reasonable person would have either retained
or regained the capacity to make a testimonial statement at the
time of the utterance.4
We offer some general guidance for the proper application
of this rule. Ordinarily, statements made to police while the
declarant or others are still in personal danger cannot be said to
have been made with consideration of their legal ramifications.
Such a declarant usually speaks out of urgency and a desire to
4
This case involves an excited utterance. The analytic
framework that we suggest will, however, apply generally to
statements alleged to come within other firmly rooted hearsay
exceptions.
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obtain a prompt response. It follows, therefore, that such
statements will not normally be deemed testimonial. See Hembertt,
696 N.W.2d at 483. Once the immediate danger has subsided,
however, a person who speaks while still under the stress of a
startling event is more likely able to comprehend the larger
significance of her words. If the record fairly supports a finding
of comprehension, the fact that the statement also qualifies as an
excited utterance will not alter its testimonial nature. See
Drayton, 877 A.2d at 149-50.
As a final matter, we caution against the use of an "all
or nothing" approach to the admission or exclusion of 911 calls.
It is entirely possible that some portions of a 911 call may
qualify as excited utterances, while others do not. Similarly,
some portions may be deemed testimonial, while others may be deemed
nontestimonial. This means, of course, that some parts of a single
911 call may run headlong into the Crawford bar, while others do
not.
Our dictum in United States v. Luciano, 414 F.3d 174 (1st
Cir. 2005), is in alignment with this framework. There, a teenager
witnessed a man pointing a gun at a woman, flagged down a passing
police cruiser, and reported what he had seen. Id. at 176. In
dictum, we observed that the statement was an excited utterance,
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made to secure immediate assistance for a woman in danger and,
thus, was not testimonial.5 Id. at 180 n.3.
This discussion adumbrates the result in the case before
us. The anonymous caller stated that she had "just" heard gunshots
and seen a man with a gun, that the man had pointed the gun at her,
and that the man was still in her line of sight. Her account
strongly suggests that she and her son, as well as others in the
vicinity, were in imminent personal peril when the call was made.
The immediacy of the threat, the existence of a clear and present
danger, and the fact that no substantial time had elapsed, in
combination, severely erode any basis for a finding that the
declarant was in a calm and reasoning state when she placed the 911
call. And, furthermore, the precision of the declarant's physical
description of the suspect is more consistent with a sense of
urgency and a desire to obtain a prompt response — the removal of
a dangerous man from the street — than with an anticipation that
her call might be used prosecutorially.
These factors are sufficient to ground our decision.
Based on the foregoing, we conclude that, here, the circumstances
that made the anonymous 911 call an excited utterance were
significant enough to overwhelm the caller's capacity to appreciate
5
In Luciano, the government introduced the excited utterance
at a sentencing hearing. The court's characterization of it as
nontestimonial was dictum because, as the court recognized,
Crawford does not apply in sentencing proceedings. See Luciano,
414 F.3d at 179.
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the potential long-range use of her words. It follows that the
call was nontestimonial and, therefore, properly admissible as an
excited utterance. See Crawford, 541 U.S. at 68 (making clear that
nontestimonial statements falling within firmly rooted hearsay
exceptions remain admissible).
The appellant's fallback position is equally unavailing.
It cannot fairly be said in the circumstances of this case that any
part of the call was the product of structured police
interrogation. Questions by a 911 operator that merely clarify or
focus an excited caller's statement are not interrogation in any
meaningful sense of the word. See, e.g., People v. Corella, 122
Cal. App. 4th 461, 469 (2004). Here, it would blink reality to
place under the rubric of interrogation the single off-handed
question asked by the dispatcher — a question that only momentarily
interrupted an otherwise continuous stream of consciousness.
That ends this aspect of the matter. Because the
admitted portion of the anonymous 911 call was both an excited
utterance and nontestimonial in nature, the call's introduction
into evidence did not sully the appellant's Sixth Amendment right
to confrontation, notwithstanding the declarant's unavailability
for cross-examination.
B. The Prior Convictions.
The appellant also challenges the district court's
admission of evidence of his three prior convictions. The
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applicable rule provides that if a criminal defendant elects to
testify, evidence that he has been convicted of a crime punishable
by more than one year in prison "shall be admitted if the court
determines that the probative value of admitting this evidence
outweighs its prejudicial effect to the accused." Fed. R. Evid.
609(a)(1). In general — there are exceptions, but none is relevant
here — such evidence is only admissible if the convictions in
question are less than ten years old. See Fed. R. Evid. 609(b).
By its terms, Rule 609(a) demands that the trial court
construct a balance. We review a trial court's construction of
this balance (i.e., its ruling admitting or excluding Rule 609
evidence) for abuse of discretion. See United States v. Powell, 50
F.3d 94, 102 (1st Cir. 1995).
The three prior convictions here at issue were all felony
drug-trafficking convictions. Though somewhat remote in time from
the date of the instant offenses — all three convictions occurred
in 1994 — they were within the ten-year window framed by Rule
609(b). The question, then, is whether the district court abused
its discretion in determining that the probative value of those
convictions for impeachment purposes outweighed their prejudicial
effects.
The appellant suggests that our decision in United States
v. Tavares, 21 F.3d 1 (1st Cir. 1994) (en banc), bears on this
question. In Tavares, we held that once a defendant who is facing
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a felon-in-possession charge has stipulated to the fact of a
preexisting felony conviction, the government may not introduce
evidence as to the nature of that conviction for the purpose of
establishing the "felon" element of the charge. Id. at 5. Even
when the defendant has so stipulated, however, the government still
may introduce evidence of prior felony convictions for impeachment
purposes if the defendant elects to testify. See United States v.
Tracy, 36 F.3d 187, 191-92 (1st Cir. 1994).
In this instance, the appellant stipulated that he
previously had been found guilty of a felony. He subsequently
chose to testify in his own defense. The government then sought to
discredit that testimony by introducing the three prior convictions
for impeachment purposes. Given this scenario, Tavares is of
little utility.
We turn now to the disputed ruling. Although the
appellant questions how past crimes that do not directly involve
dishonesty or fraud are relevant to credibility, our case law long
has recognized that Rule 609 represents a valid legislative
judgment that such convictions do have some probative value for
impeachment purposes. See United States v. Norton, 26 F.3d 240,
243 (1st Cir. 1994); United States v. Oakes, 565 F.2d 170, 172 (1st
Cir. 1977). The nature of the underlying felony generally goes not
to its admissibility per se but, rather, to its weight in the
balancing of probative worth and prejudicial impact. See 4 Jack B.
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Weinstein & Margaret A. Berger, Weinstein's Federal Evidence §
609.05[3][b] (2d ed. 2005) (collecting cases).
A wide array of factors may be considered when
calibrating the Rule 609 scales. Without limiting the generality
of that statement, these may include (i) the impeachment value of
the particular convictions; (ii) their immediacy or remoteness
(even though they are within the ten-year window); (iii) the degree
of potential prejudice that they portend; (iv) the importance of
the defendant's testimony; and (v) the salience of the credibility
issue in the circumstances of the particular case. See, e.g.,
United States v. Smith, 131 F.3d 685, 687 (7th Cir. 1997); United
States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir. 1980).
In this case, several of these factors cut in favor of
admissibility. Prior drug-trafficking crimes are generally viewed
as having some bearing on veracity. See, e.g., United States v.
Gant, 396 F.3d 906, 909-10 (7th Cir. 2005) (finding drug-
trafficking offense probative of credibility in gun possession
case); United States v. Lattner, 385 F.3d 947, 961 (6th Cir. 2004)
(similar). The offenses underlying the appellant's prior
convictions are not similar to the offenses charged in this case.
That is relevant because convictions for dissimilar crimes are
customarily thought to be less prejudicial than convictions for
similar crimes (which may run a risk of implying a propensity to
commit the crime). See, e.g., United States v. Montgomery, 390
-23-
F.3d 1013, 1016 (7th Cir. 2004); Jackson, 627 F.2d at 1210.
Perhaps most important, this case hinged on a credibility choice;
the jury had to decide whether to believe the appellant or the
police officers. The salience of the credibility issue weighs in
favor of admitting the prior convictions. See United States v.
Pritchard, 973 F.2d 905, 909 (11th Cir. 1992); Oakes, 565 F.2d at
173.
To be sure, other factors (e.g., remoteness) weigh
against admissibility. Taking the panoply of circumstances as a
whole, however, the decision to accept or reject the proffer fell
well within the encincture of the district court's discretion.
Where the circumstances can fairly support a decision either to
admit or to exclude particular evidence, it is not the proper
province of an appellate court to second-guess the trial court's
on-the-spot judgment. Cf. Freeman v. Package Mach. Co., 865 F.2d
1331, 1340 (1st Cir. 1988) (observing, with respect to Rule 403
balancing, that "[o]nly rarely — and in extraordinarily compelling
circumstances — will we, from the vista of a cold appellate record,
reverse a district court's on-the-spot judgment concerning the
relative weighing of probative value and unfair effect"). So it is
here.6
6
We note with approval that the trial court gave a limiting
instruction indicating that the evidence of prior convictions was
to be considered only insofar as that evidence bore on credibility.
While the appellant criticizes this instruction on appeal, he
interposed no contemporaneous objection to it.
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The appellant makes two subsidiary arguments that warrant
brief comment. First, he assigns error to the district court's
failure to spell out its exposition of the Rule 609(a) balancing
test. Although it would have been helpful for the court to make a
detailed balancing analysis on the record, the court was not
required to do so. See United States v. De La Cruz, 902 F.2d 121,
123 (1st Cir. 1990). Moreover, the absence of express findings is
less troublesome where, as here, the record reflects the court's
keen awareness of its duty to balance probative value against
prejudicial effect and its discussion of the issue with counsel.
Second, the appellant, citing Powell, argues that the
lower court erred in allowing the government to describe the nature
of the prior felony convictions by using the title of each crime.
In Powell, we observed that the practice of allowing the government
to ask about the number of felonies, but not to describe their
nature, was a "fair way" to help balance probative value against
prejudicial impact. 56 F.3d at 102. Although Powell endorses the
admission of Rule 609(a) evidence in this truncated manner, it in
no way requires the use of such a technique. Here, moreover, the
appellant's attempt to raise this argument stands on noticeably
shaky ground: the district court expressly offered him the chance
to have only the number of felonies recounted, but he eschewed the
opportunity.
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C. Sentencing.
Finally, the appellant suggests that the district court
erred in sentencing him pursuant to the mandatory sentencing
guidelines then in effect. See United States v. Booker, 125 S. Ct.
738 (2005). He concedes that he did not preserve this claim of
error below; thus, it engenders plain error review. See United
States v. Martins, 413 F.3d 139, 153 (1st Cir. 2005); United States
v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). In order to
prevail under that standard, the appellant must make a four-fold
showing: "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity, or
public reputation of judicial proceedings." United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
With respect to a claim of Booker error, the first two
elements of the plain error test are satisfied whenever a defendant
has been sentenced pursuant to a mandatory guidelines system.
Antonakopoulos, 399 F.3d at 77. That is the case here. The
appellant stumbles, however, on the third step of the plain error
staircase.
To demonstrate that a Booker error affected substantial
rights, a defendant must show a "reasonable probability" that he
would have received a more lenient sentence under an advisory
guidelines regime. United States v. González-Mercado, 402 F.3d
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294, 303 (1st Cir. 2005); Antonakopoulos, 399 F.3d at 78-79. In
this type of situation, we are not "overly demanding as to proof of
probability." United States v. Heldeman, 402 F.3d 220, 224 (1st
Cir. 2005). Still, a defendant must offer something that has
persuasive force. See id. (requiring, at a bare minimum, a
"reasonable indication that the district judge might well have
reached a different result under advisory guidelines").
The appellant argues that there is a reasonable
probability of a more lenient sentence because the district court
(i) sentenced him at the nadir of the applicable sentencing range
and (ii) encountered severe limitations, under the then-mandatory
guidelines, as to its ability to consider his personal
characteristics and disadvantaged upbringing. These arguments lack
force: the appellant's generic challenges simply cannot cross the
Antonakopoulos threshold.
We need not tarry. We have held, with a regularity
bordering on the monotonous, that a defendant cannot establish a
reasonable probability of a more lenient sentence merely by showing
that the district court sentenced him at the low end of the
guideline sentencing range. See, e.g., United States v. Guzmán,
___ F.3d ___, ___ (1st Cir. 2005) [No. 04-1888, slip op. at 12];
United States v. Kornegay, 410 F.3d 89, 99-100 (1st Cir. 2005). We
also have held that when a sentencing court gives no indication
that it is impressed by a defendant's disadvantageous upbringing,
-27-
fully detailed in the presentence investigation report, we cannot
draw an inference from the court's silence that it would have
imposed a more lenient sentence under an advisory guidelines
system. See Martins, 413 F.3d at 154. On this record, then, the
appellant has failed to carry his burden of showing a reasonable
probability that he would have received a lower sentence under an
advisory guidelines regime.
III. CONCLUSION
We need go no further. This is a close and difficult
case, but the appellant, though ably represented, has not convinced
us that any reversible error inhered in either the admission of
evidence or the imposition of sentence.
Affirmed.
— Concurring opinion follows —
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HOWARD, Circuit Judge, concurring in part and concurring
in the judgment. I agree that the statements by the anonymous 911
caller reporting Brito's offense were non-testimonial and therefore
were admitted consistent with Crawford v. Washington, 541 U.S. 36
(2004). See ante at 17-20. More specifically, I agree that the
statements here were properly admitted even if the nature of the
inquiry is that, as the lead opinion says, "the testimonial hearsay
inquiry focuses on whether a reasonable declarant, similarly
situated, would have had the capacity to appreciate the legal
ramifications of her statement." Ante at 17. I write separately,
however, because I do not read Crawford to make the declarant's
actual or hypothetically reasonable state of mind the loadstar by
which we are to determine if a statement is testimonial. Compare
id. at 17-18. Rather, as I read Crawford, the focus should be on
the circumstances in which the statement was obtained, with the
declarant's state of mind (at least in cases where that state of
mind is shown to be no more than an awareness, rather than an
intention) being only one factor in determining the nature of the
circumstances. See Crawford, 541 U.S. at 68 (defining a
testimonial statement by reference to the nature of the proceeding
in which the statement was made).
In Crawford, the Supreme Court revised its approach to
deciding when a hearsay statement may be admitted at a criminal
trial without violating the Confrontation Clause's guarantee that
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"the accused shall enjoy the right to be confronted with the
witnesses against him." U.S. Const. Amend. VI. Prior to Crawford,
the Court permitted the admission of hearsay from an unavailable
declarant so long as it "fell within a firmly rooted hearsay
exception" or otherwise bore "particularized guarantees of the
trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980).
Crawford overruled Roberts as to so-called "testimonial" hearsay,
holding that such hearsay is not to be admitted unless the
declarant is unavailable for trial and the defendant had a prior
opportunity to cross-examine. See 541 U.S. at 63-68. The Court
did not, however, set forth a definitive definition of the term
"testimonial." See id. at 68. Instead, it provided three
"formulations" of "the core class of testimonial statements" at
"various levels of abstraction":
[1] ex parte in-court testimony or its
equivalent -- that is material such as
affidavits, custodial examinations, prior
testimony that the defendant was unable to
cross-examine, or similar pretrial
statements that declarants would reasonably
expect to be used prosecutorially [;]
[2] extrajudicial statements contained in
formalized testimonial materials, such as
affidavits, depositions, prior testimony, or
confessions; [and] [3] statements that were
made under circumstances which would lead
an objective witness reasonably to believe
that the statement would be available for
use at a later trial.
Id. at 51-52.
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As the lead opinion observes, these formulations have
engendered a "miasma of uncertainty" among lower courts trying to
identify testimonial hearsay. Ante at 2; see also Crawford, 541
U.S. at 68 n.10 (recognizing that the Court's failure to
articulate a comprehensive definition of "testimonial" statements
will cause "interim uncertainty"). Many courts have resolved this
uncertainty by seizing on the most general formulation -- a
statement is testimonial if the circumstance under which the
statement was made would lead an objective witness reasonably to
believe that the statement would be available for use at a later
trial -- and applying it, without sufficient attention to
Crawford's textual and historical rationale. See, e.g., United
States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005); United
States v. Comer, 389 F.3d 662, 675 (6th Cir. 2004); United States
v. Saget, 377 F.3d 223, 229 (2d Cir. 2004); Commonwealth v.
Gonsalves, 445 Mass. 1, 12-13 (2005). Courts that have adopted
this approach have divided on close questions such as the
categorization of various 911 calls. Ante at 13-15. A sounder,
more predictable body of law will emerge if, when applying the
various "formulations," we hew closely to what I suggest is the
foundational thrust of Crawford.
Crawford employed a historical approach to define the
reach of the Confrontation Clause. See id. at 43-50. In
reviewing the historical record, the Court identified "the civil-
-31-
law mode of criminal procedure" as "the principal evil at which
the Confrontation Clause was directed." Id. at 50. In particular,
the elimination of "ex parte examinations" was the Clause's main
concern. Id.
The Court discussed typical examples of the abusive use
of civil-law interrogations in early English law. Id. at 43-47.
It emphasized the practice of justices of the peace examining
suspects and witnesses before trial and then reading these
examinations in court. Id. at 43. The Court highlighted the
notorious 1603 trial of Sir Walter Raleigh, in which Raleigh was
convicted of treason based on a hearsay statement given by Lord
Cobham to the Privy Council. Id. at 44.7 Dissatisfaction with
these practices spawned the common law rule, in practice when the
Sixth Amendment was adopted in 1791, that an out-of-court
statement given to a government official as part of a formal
interrogation could only be introduced if the defendant had
previously been able to cross-examine the declarant. Id. at 46-
47.
The historical examples in Crawford all involved the
government's use of formal ex parte examinations to obtain hearsay
statements that could later be used at a criminal trial.
7
The Court also noted various controversial ex parte
examinations conducted by English authorities in the Colonies,
including the enforcement of the Stamp Act through the presentation
of testimony taken by pretrial deposition or private judicial
examination. Id. at 48.
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According to the Court, this historical background demonstrates
that the Confrontation Clause was intended to prohibit the
government's use of these procedures where the defendant did not
have an opportunity for cross-examination. See id. at 68.
To support its historical interpretation, the Court
examined the Confrontation Clause's text. Id. at 51. The Clause
applies to "witnesses," which the Court defined as one "who bears
testimony." Id. In turn, the Court defined testimony as "a
solemn declaration or affirmation made for the purpose of
establishing or proving a fact." Id. The Court then synthesized
the Clause's text and history to reach the general conclusion that
the Clause "reflects an especially acute concern with a specific-
type of out-of-court statement" -- i.e., solemn declarations made
to government officials in circumstances that resemble the
repudiated civil-law mode of interrogation. Id.
It is only after this discussion that the Court set
forth its three formulations of testimonial hearsay. Id. at 51-
52. The first two are examples of modern-day practices that
resemble the civil-law mode of interrogation (i.e., affidavits,
depositions, custodial examinations, prior testimony, confessions,
and police interrogations). Id. Only the third presents a
general definition without concrete examples. Id. In the
historical and textual discussion preceding these formulations,
I find no warrant to interpret this third formulation to
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substantially broaden Crawford's holding. Instead, we should
construe the three formulations as directed at the same concern:
preventing the government from using hearsay statements at trial
if the statements were obtained through a method that resembles
a civil-law mode of interrogation.8 See Gonsalves, 445 Mass. at
31-32 (Sosman, J., concurring) (stating that courts should strive
to "harmonize all three [Crawford] formulations" instead of
allowing the third to swallow the other two); see also United
States v. Saner, 313 F. Supp. 2d 896, 901 (S.D. Ind. 2004)
(stating that a statement is testimonial if it was made in
circumstances similar "to the abuses at which the Confrontation
Clause was directed); People v. Kilday, 20 Cal. Rptr. 3d 161, 173-
74 (Cal. Ct. App. 2004) (holding that statement obtained by a
police officer was non-testimonial because the officer was not
acting in an investigative capacity when the statement was made).
Under this view, the third formulation ordinarily should be limned
by whether the statement was obtained by means of a procedure that
resembles formal ex parte interrogation.
To be sure, applying the Crawford formulations in this
manner will not easily resolve every close case. But this
8
The Court described its three formulations as referring to a
"core class of testimonial statements," all of which "share a
common nucleus" that implicates the Confrontation Clause. Id. at
51. It would be inconsistent with the Court's description of these
formulations, as defining a single core, to construe one
formulation as incorporating situations different in kind from the
other two.
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approach keeps faith with the Supreme Court's expressed rationale
for revising Confrontation Clause jurisprudence, and it will
provide courts with a set of concrete examples to use as
benchmarks in deciding Confrontation Clause cases. This approach
therefore will promote more uniformity in decisions applying
Crawford.
Under this approach, a statement obtained by recording
a 911 call is non-testimonial in most cases. The purpose of the
911 operator is to provide citizens with an avenue to obtain
emergency help from municipal or state personnel. Typically, the
911 operator focuses on ascertaining the location and identity of
the caller and the nature of the emergency; she does not
investigate or prosecute crimes.
In the Crawford examples, testimonial statements were
obtained through proceedings that had a sufficient degree of
formality to put the declarant on notice that her narrative would
constitute "a solemn declaration or affirmation of a fact."
Crawford, 541 U.S. at 51. By contrast, the expectation is that
911 calls occur in the midst of an emergencies. They lack the
formal trappings and face-to-face contact associated with swearing
out an affidavit, giving deposition testimony, testifying in
court, confessing to the police, or participating in an
interrogation by the police. Because the typical 911 call is
distinct from the formal interrogation methods exemplified by the
-35-
Crawford examples, most statements obtained from 911 calls,
including the one at issue here, are non-testimonial.
-36-