United States v. Shoup

United States Court of Appeals
For the First Circuit

No. 04-2542
UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL G. SHOUP,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lipez, Circuit Judge,

Cyr, Senior Circuit Judge,

and Singal,* District Judge.

Peter B. Krupp, with whom Lurie & Krupp, LLP was on brief for
appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.

February 7, 2007

*
Of the District of Maine, sitting by designation.
 CYR, Senior Circuit Judge. Defendant-appellant Daniel

Shoup challenges the conviction, as well as the sentence, imposed

upon him for one count of being a felon in possession of a firearm.

18 U.S.C. § 922(g)(1). We affirm the conviction, and remand for

resentencing in light of United States v. Booker, 543 U.S. 220

(2005).

I

BACKGROUND

Shortly after midnight on March 17, 2002, Shoup was

driving his SUV, a black Ford Tahoe bearing license plate 8549 VZ,

through downtown Salem, Massachusetts, when he encountered Bard

Carvalho and several friends walking from a local bar to the home

of one of his friends. Shoup leaned out the car window and yelled

“homo” at the group. Thinking it was a joke, Carvalho yelled back:

“You’re a homo.” The Carvalho group continued walking until they

arrived outside his friend’s house on Lynde Street. Shoup pulled

up in his SUV, exited the vehicle, approached Carvalho, and stated:

“Do you have a problem with me?” Carvalho observed what appeared

to be a handgun protruding from Shoup’s waistband, with the handle

wrapped in silver duct tape. Determined to get away from the

dangerous situation quickly, Carvalho grabbed his friend Tamsen’s

wrist, led her inside the apartment, and immediately called 911.

Carvalho’s other friends remained outside talking with Shoup.

Carvalho promptly advised the 911 dispatcher that (i) a

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man driving a car bearing license plate 8549 VZ had just threatened

him and his friends; (ii) the man “has a gun in his pants”; and

(iii) the vehicle in question is a black Tahoe. By this time, one

or two minutes had elapsed since Carvalho left his friends outside,

and Carvalho observed through the apartment window that Shoup was

driving away. Carvalho advised the dispatcher: “I’m sorry I

called 9-1-1; it’s probably not that severe, but he had a gun in

his pants and he was threatening us.” Carvalho then notified the

dispatcher that he was observing Shoup taking a left from Lynde

Street onto North Street. Carvalho described the man as a 30 to 35

year old Caucasian (which matches Shoup’s physical appearance), and

thought that he may have been intoxicated. When the dispatcher

asked Carvalho if the man had brandished the gun, Carvalho replied:

“No he just had it. He pulled the coat back and had it ... like

exposed. . . . There was some . . . silver duct tape on like, I

think on the gun.” The dispatcher told Carvalho that a police

officer would be sent to Lynde Street, and rang off.

Within fifteen to thirty minutes, the police stopped

Shoup’s SUV in downtown Salem. When asked if he knew why he was

stopped, Shoup replied: “Yes”. Shoup was carrying a folding knife

in his right front pant’s pocket, with only the clip exposed. The

police discovered a black police baton under the front seat of the

vehicle, as well as two loaded and holstered handguns inside the

console between the driver’s seat and the front passenger seat.

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One firearm had a silver-colored handle.

Shoup was indicted on one count of being a felon in

possession of a firearm. 18 U.S.C. § 922(g)(1). At trial,

Carvalho testified that he had observed Shoup carrying what

appeared to be a gun in his waistband. The government corroborated

that testimony by playing the tape of the Carvalho 911 phone call.

The arresting officers testified to stopping the Shoup vehicle

shortly after the 911 call, and to the seizure of the two handguns

from the console.

The defense called Shoup’s brother, John, who testified

that he had borrowed Dan Shoup’s SUV on March 15 because he

intended to take his family on a beach outing the following day,

that he used the SUV on that day to take a friend named Sean Nobile

on errands, and that during this trip he was surprised to discover

that Nobile was carrying two firearms. John further testified that

he told Nobile to put the guns in the console and lock it, but when

John dropped Nobile off at his home, both of them had forgotten

that the guns were still in the console. John testified that he

used the SUV on March 16 to take his family for an outing, then

returned the car to Dan Shoup’s house late in the day on March 16,

but forgot to tell Dan that the two guns were in the locked

console. Shoup’s former girlfriend, Colleen Dowgos, testified for

the defense that Nobile contacted her about twelve days after

Shoup’s arrest, and told her that he had paid the $20,000 bail to

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get Shoup out of jail on state charges. Since Shoup meanwhile had

been re-arrested on federal charges, Dowgos gave Nobile the keys to

Shoup’s apartment because Nobile wanted to retrieve some property

he had left there. Because Sean Nobile invoked his Fifth Amendment

right against self-incrimination, the district court declared him

an “unavailable witness.”

The jury found Shoup guilty. At sentencing, which

occurred prior to the decision in United States v. Booker, 543 U.S.

220 (2005), the district court sentenced Shoup at the low end of

the applicable guidelines range (i.e., 210 months), but noted that

Booker might rule the Sentencing Guidelines unconstitutional, in

which case the court would impose the statutory minimum sentence of

180 months. Shoup now appeals from his conviction and sentence.

II

DISCUSSION

A. Admissibility of 911 Tape Transcript

Shoup first contends that the district court erred in

allowing the government to introduce in evidence the audiotape and

transcript of Carvalho’s 911 call, because they do not qualify

under any exclusion from the hearsay rule, see Fed. R. Evid.

801(d)(1)(A) (prior statement inconsistent with trial testimony);

id. 801(d)(1)(B) (prior consistent statement to rebut charge of

recent fabrication); id. 801(d)(1)(C) (statement of

identification), and their admission constitutes reversible error

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because Carvalho’s in-court testimony was much more tentative in

identifying the object in Shoup’s waistband as a handgun (or as one

of the two guns in evidence), and standing alone, would not have

persuaded the jury to reject the defense’s theory that the two guns

belonged to Nobile and that Shoup was unaware of their presence in

the locked console of the car.

As Shoup did not object to the admission of the 911

recording or transcript, we review his challenge for plain error

only, and will reverse only if he demonstrates that (i) there was

error; (ii) the error was obvious; and (iii) the error affected

Shoup’s substantial rights by altering the outcome of the trial.

See United States v. Bartos, 417 F.3d 34, 36 (1st Cir. 2005)

(noting that, provided these three conditions are satisfied, the

court may in its discretion, reverse to prevent a miscarriage of

justice) (citing United States v. Olano, 507 U.S. 725, 734-35

(1993)).

Shoup’s argument fails, since he can show neither that

there was error, nor if there were an error, that it was obvious.

The government contends that the 911 call satisfies either the

“excited utterance” or the “present sense impression” exception to

the hearsay rule. See Fed. R. Evid. 803(2) (noting that 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” is an exception to the hearsay rule); id.

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803(1) (noting that a statement “describing or explaining an event

or condition made while the declarant was perceiving the event or

condition, or immediately thereafter[,]” is an exception to the

hearsay rule).

Shoup counters, inter alia, that the 911 recording would

not have been admissible under either exception since too much time

had elapsed between the time Shoup confronted Carvalho with the gun

and the time Carvalho spoke with the 911 dispatcher. Rules 803(1)

and (2) do not require that the statement occur contemporaneously

with the event, however, since “in many, if not most, instances

precise contemporaneity is not possible and hence a slight [time]

lapse is allowable.” Fed. R. Evid. 803(1) advisory committee’s

note; see United States v. Taveras, 380 F.3d 532, 537 (1st Cir.

2004) (noting that permissible delay may in fact be even “a few

minutes” or more). Given Carvalho’s testimony that Shoup drove

away only one or two minutes into Carvalho’s 911 call, Carvalho’s

911 call came immediately after his confrontation with Shoup, and

while Carvalho’s friends were still outside with Shoup and remained

at risk. See United States v. Rondeau, 430 F.3d 44, 48 (1st Cir.

2005) (finding no error in admission of 911 call “made as or

immediately after [defendant] threatened [the caller] with the

gun”). Carvalho began the call by declaring that Shoup “has a gun

in his pants.”

Further, the record contains no other indication that the

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911 recording lacked evidentiary reliability. The defense

stipulated to the accuracy of the transcript of the 911 call. The

Carvalho in-court testimony was entirely consistent with the 911

tape, and in many respects more detailed. Id. (noting that 911

caller never changed his account of the events). Carvalho

testified that he “saw something in his [Shoup's] waistband that I

believed at the time was a pistol,” with silver duct tape on its

handle. Although Carvalho conceded that he had observed the gun

Shoup was carrying in his waistband for about five seconds and

could not identify it positively as either of the two handguns in

evidence, he further testified that, except for it appearing

smaller than he remembered, the gun with the silver-colored handle

“looks like the visual memory that I have of [the gun].” Further,

the police managed to corroborate the other facts stated in the 911

call, by stopping a black Ford Tahoe with licence plate 8549 VZ in

the nearby downtown area within minutes of the Carvalho call and by

seizing a gun with a silver-colored handle from the vehicle. Id.

at 48-49 (noting that police corroborated 911 call by locating

defendant near caller’s building in a car matching caller’s

description, and a gun which the caller identified). Given these

circumstances, it is indeed doubtful that admission of the 911 call

was error at all, let alone plain error.

In any event, since the time-lapse delimitation on an

“excited utterance” or a “present sense impression” is by no means

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a bright-line test, see Fed. R. Evid. 803(1) advisory committee’s

note (“‘How long can excitement prevail? Obviously there can be no

pat answers and the character of the transaction or event will

largely determine the significance of the time factor.’”) (citation

omitted), Shoup cannot demonstrate that the district court would

have committed “obvious” error had it determined that the 911 call

was admissible under these two hearsay exceptions. See, e.g.,

United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004)

(finding no plain error where 911 caller reported that defendant

used a gun to threaten his girlfriend’s mother and sister), cert.

denied, 126 S. Ct. 417 (2005); accord United States v. Hartmann,

958 F.2d 774, 784 (7th Cir. 1992) (finding no plain error where

declarant just overheard plot to murder him). By failing to lodge

a contemporaneous objection to the admission of the 911 tape and

transcript, Shoup precluded (thus relieved) the government from

presenting its best evidence as to the time-lapse issue, and the

district court from making the attendant findings of fact. For

these reasons, we perceive no plain error.

B. The Prosecutor’s Closing Argument

As Nobile invoked his Fifth Amendment right against self-

incrimination, he became an “unavailable” witness for the defense.

See United States v. DeLuca, 137 F.3d 24, 38 (1st Cir. 1998).

However, in its closing argument the government stated: “If you

believe what these [defense] witnesses testified to, you’d have to

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believe, first of all, that this phantom Sean Nobile put these guns

in the car.” (Emphasis added.) In its rebuttal argument, the

government once again referred to “this phantom Sean Nobile.”

Shoup now contends that these references constituted reversible

error because they improperly invited the jury to infer either that

Nobile was a fictitious person that the defense invented to

exonerate Shoup, or that the defense had chosen not to call Nobile

to testify because his testimony would have been adverse to the

defense.

Once again, Shoup made no contemporaneous objection to

the prosecutor’s “phantom” remarks, and we review the present

challenge for plain error only, and will not reverse unless the

prosecutor’s remarks “‘so poisoned the well that the trial’s

outcome was likely affected.’” United States v. Henderson, 320

F.3d 92, 107 (1st Cir. 2003) (citation omitted). Appellate

reversal for plain error is extremely rare, and is confined to

“blockbuster” errors, not “ordinary backfires,” United States v.

Ortiz, 447 F.3d 28, 35-36 (1st Cir. 2006) (noting that criminal

defendants are not entitled to a “perfect” trial).

The government normally may not invite the jury to make

any inference regarding the absence of a witness whose

unavailability has arisen because of the invocation of his Fifth

Amendment right against self-incrimination. See United States v.

Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973) (“Neither side has the

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right to benefit from any inferences the jury may draw simply from

the witness’ assertion of the privilege either alone or in

conjunction with questions that have been put to him.”). The

“phantom” term necessarily implied that Nobile either did not

exist, or that, if he existed and testified at trial, he would

provide no support for the defense theory. Therefore, the

government concedes (and we agree) that the prosecutor’s “phantom”

references were extremely ill-advised.

In assessing whether a prosecutor’s improper closing

remarks necessitate reversal, however, we must consider, inter

alia, (i) the severity of the prosecutor’s misconduct; (ii) whether

deliberate or inadvertent; (iii) the context in which it occurred;

(iv) the likely effect of any curative instructions; and (v) the

strength of the government’s evidence of guilt. See United States

v. Thompson, 449 F.3d 267, 271 (1st Cir. 2006); United States v.

Zhangi, 189 F.3d 71, 82 (1st Cir. 1999) (noting that new trial

should be granted only if “‘prosecutorial misconduct likely

affected the trial's outcome or to deter such misconduct in the

future’”) (citation omitted).

Viewed through this narrow lens of appellate review, the

prosecutor’s references to “phantom” are relatively benign. The

prosecutor did not focus at length on the failure of the defense to

produce the witness. The prosecutor used the word “phantom” but

twice, with no further elaboration, nor is there any indication

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that its use was deliberate, rather than a mistake. See United

States v. Hernandez, 218 F.3d 58, 70 (1st Cir. 2000) (noting that

word “unknown” was an “isolated” reference, hence “most likely non-

deliberate”); United States v. Cruz, 156 F.3d 22, 31 (1st Cir.

1998) (noting that deterrent prong of plain error analysis requires

that defendant make particularized allegations of prosecutorial

“bad faith”).1 We have refused to find plain error in cases where

the prosecutor has been far more explicit in shifting the burden of

proof to defendant. See, e.g., United States v. Jimenez-Torres,

435 F.3d 3, 11-12 (1st Cir. 2006) (finding no plain error even

though government counsel argued that defense counsel “had the same

opportunity to call these [absent] witnesses,” and noting that

appellate assessment of the prejudice attending such absent-

witnesses comments is always “a matter ‘of degree’”) (citation

omitted). Furthermore, the fact that defense counsel did not

object to the usage increases the likelihood that the effect on the

jury was likewise fleeting and evanescent. See United States v.

Procopio, 88 F.3d 21, 31 (1st Cir. 1996) (“The fact that the

defense did not object also may suggest that, in the conditions of

the courtroom, the passage in question passed by as mere

1
The parties originally anticipated that their closing
arguments would be made on the third day of trial, but when the
presentation of evidence unexpectedly ended early on day two, the
district court allowed counsel only twenty minutes to script and
review their closing arguments.

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rhetoric.”).2

Yet more importantly, the prosecutor did not elaborate on

or otherwise exploit the fact that Nobile did not testify, and/or

that Nobile’s testimony presumably would be adverse to the defense.

Rather, the prosecutor immediately focused on the fact that, even

if Nobile’s testimony had confirmed the defense’s theory, “the

testimony [supporting that theory] is both incredible and

irrelevant,” since “[t]he question in this case isn’t ownership [of

the guns][,] [i]t is possession.”3 Given the Carvalho testimony

that he had seen a gun in Shoup’s waistband, the prosecutor aptly

noted that it was irrelevant who owned the gun, and that Shoup was

guilty of section 922(g)(1) possession even if he had found the

Nobile gun in the console and brandished it during his encounter

with Carvalho.

Although Shoup’s failure to object to the prosecutor’s

remarks precluded the district court from delivering a targeted

curative instruction, the court nonetheless instructed the jury in

closing that the government had the burden to prove Shoup’s guilt

2
Indeed, defense counsel himself repeated the word “phantom”
in his closing argument, without any indication that he objected to
the government’s prior usage.
3
The prosecutor called attention to the seeming implausibility
of Shoup’s brother’s testimony that he simply had forgotten that
Nobile had placed the two guns in the car which he used to take his
family on a beach outing, and that he simply forgot to tell Shoup
about the guns when he returned the car, even though both he and
Shoup were convicted felons prohibited from possessing firearms.

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beyond a reasonable doubt and that Shoup had no burden of proof

whatsoever. See Jimenez-Torres, 435 F.3d at 12 (noting that, where

defendant’s failure to object prevents court from giving

contemporaneous and specific curative instruction, generic jury

instructions given after closing arguments should be weighed in

mitigation of prejudice under “plain error” analysis).4

Finally, the evidence of Shoup’s gun possession – viz.,

the Carvalho trial testimony and the 911 tape/transcript – was

quite strong. Carvalho was an eyewitness. Carvalho testified at

trial that the silver-handled gun in evidence was the object he had

seen in Shoup’s waistband. The defense attempted to undermine

Carvalho’s observations by noting that he erroneously believed at

the time of the confrontation that the gun handle was wrapped in

silver duct tape, but the gun seized from the Shoup vehicle had a

silver-colored handle, and Carvalho had observed the gun for only

five seconds at nighttime. See United States v. Hall, 165 F.3d

1095, 1107 (7th Cir. 1999) (noting that question of reliability of

eyewitness’s perception and memory may be tested adequately through

4
The charge provided, in pertinent part: “In a criminal case,
the burden of proving guilt is on the government. It has that
burden throughout trial. A defendant never has the burden of
proving his innocence. The right of a defendant to put the
government to its proof is one of the most fundamental guarantees
of our Constitution. This means that a defendant cannot be
compelled to produce evidence, nor can he be compelled to testify.
Thus, you may not draw an inference of guilt from the fact that Mr.
Shoup did not testify.”

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cross-examination, and resolved by jury “through common-sense

evaluation”).

Carvalho also provided the 911 dispatcher with

contemporaneous descriptions of Shoup, his gun, his vehicle, its

license plate, and the direction in which Shoup departed the scene

of their confrontation. These details were precisely corroborated

when the police stopped the Shoup car within a short time and

distance from the scene. When apprehended, Shoup told the police

that he knew why the police were stopping him. A silver-handled

gun was seized from the car, and an inventory search revealed no

other object fitting the description of the object Carvalho

observed earlier in Shoup’s waistband. Even if the jury had

believed the defense argument that Shoup’s brother had locked the

guns in the vehicle’s console, there was no evidence to rebut the

common sense inference that Shoup would have possessed a key to the

console in his own vehicle.

In these circumstances, we can discern no sound grounds

for reversal. See United States v. Young, 470 U.S. 1, 15 (1985)

(“[T]he plain-error exception to the contemporaneous-objection rule

is to be ‘used sparingly, solely in those circumstances in which a

miscarriage of justice would otherwise result.’”) (citation

omitted).

C. The Pre-Booker Sentence

Shoup was sentenced prior to the decision in United

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States v. Booker, 543 U.S. 220 (2005), which held that the federal

Sentencing Guidelines are unconstitutional to the extent mandatory,

as distinguished from advisory. As Shoup properly preserved his

Booker challenge in the district court, the government must bear

the burden of establishing beyond a reasonable doubt that the

district court would not have imposed a lesser sentence if it had

acted under an advisory – rather than mandatory – Guidelines

regime. See United States v. Fornia-Castillo, 408 F.3d 52, 73 (1st

Cir. 2005). The government acknowledges that it cannot meet this

burden given that the district court sentenced Shoup at the low end

of the applicable guidelines range, and expressly stated that it

would impose the statutory minimum 180-month sentence if the

guidelines were invalidated by Booker. Accordingly, we vacate the

sentence and remand for resentencing in light of Booker.5

The judgment of conviction is affirmed. The sentence is
vacated, and the case is remanded for resentencing in accordance
with the opinion herein.

5
Shoup also contends that, upon remand, the district court may
not sentence him on the basis of his prior convictions, because the
government failed to prove the convictions to the jury beyond a
reasonable doubt. This argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), and we have held en banc
that we are bound by Almendarez-Torres until the Supreme Court
overrules it. See, e.g., United States v. Peralta, 457 F.3d 169,
172 (1st Cir. 2006) (citing United States v. Jimenez-Beltre, 440
F.3d 514, 518-19 (1st Cir. 2006) (en banc)).

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