United States v. Brown

United States Court of Appeals
For the First Circuit

Nos. 05-2830
06-1306

UNITED STATES OF AMERICA,

Appellee, Cross-Appellant,

v.

DENNIS W. BROWN,

Defendant-Appellant, Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Torruella and Howard, Circuit Judges,
and Delgado-Colón,* District Judge.

Joan M. Griffin, with whom Benjamin A. Goldberger and
McDermott Will & Emery LLP, were on brief, for defendant-appellant/
cross-appellee.
Donald L. Cabell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee/cross-appellant.

December 7, 2007

*
Of the District of Puerto Rico, sitting by designation.
 TORRUELLA, Circuit Judge. On July 15, 2004, a jury found

Dennis W. Brown ("Brown") guilty of being a felon in possession of

four firearms and 200 rounds of ammunition in violation of 18

U.S.C. § 922(g)(1). Before trial, the district court had denied

Brown's motions to suppress certain evidence and exclude certain

testimony. Brown claims error in these denials, and in the manner

in which the district court empaneled the jury.

On February 24, 2005, the district court found Brown

subject to sentencing under the Armed Career Criminal Act ("ACCA"),

18 U.S.C. § 924(e), and handed down a sentence of 180 months'

imprisonment. On Brown's motion, the district court resentenced

him on July 7, 2005 to take account of the Supreme Court's March

2005 holding in Shepard v. United States, 544 U.S. 13 (2005). The

district court found that, in light of Shepard, Brown did not now

qualify as an armed career criminal, and handed down a new sentence

of sixty-three months. The Government cross-appeals.

After careful consideration, we affirm Brown's

conviction. We also affirm his new sentence, but for a reason

other than that given by the district court.

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 I. Background1

On June 18, 2002, Scott DeVlaminck was arrested when he

attempted to sell four firearms with ammunition to a cooperating

witness. As police officers converged upon DeVlaminck, he

immediately identified Dennis Brown as the source of the guns. He

stated that Brown had offered to pay him half the proceeds of the

sale, and that Brown expected him to return immediately with the

money. DeVlaminck told the officers that Brown had retrieved the

guns from his garage at 88 Forest Street in Salisbury,

Massachusetts.

Lt. Thomas Coffey and Cpl. David L'Esperance had

participated in a major drug investigation involving Brown in the

early 1990s, and knew him and his voice from personal debriefings

and from listening to hundreds of hours of intercepted

communications. Coffey instructed DeVlaminck, who had been placed

under arrest, to call Brown on DeVlaminck's cell phone and pretend

the buyer had demanded a lower price. As Coffey and L'Esperance

huddled close to DeVlaminck and listened in, Brown instructed

DeVlaminck to return with as much money as he could get from the

buyer. Shortly thereafter, five police cruisers converged upon the

Brown family compound, which contained several buildings including

1
We recite the facts relating to the denial of Brown's motion to
suppress as found by the district court, consistent with record
support. See United States v. Romain, 393 F.3d 63, 66 (1st Cir.
2004); see also United States v. Brown, 322 F. Supp. 2d 101, 103-04
(D. Mass. 2004) (district court's factual findings).

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a house owned by Brown's brother, and a garage with a workshop

Brown used as a motor-repair business. Brown resided permanently

in a trailer near the garage. The complex of buildings was

obscured by vegetation and was thus not visible from the road; the

only access to it was an unobstructed 400-foot gravel driveway

leading to the rear of the home. No signs directed visitors to the

home or the motor-repair shop. As the officers reached the complex

of buildings, Brown emerged from the garage carrying a cell phone.

Coffey placed Brown under arrest and seized the phone. The

officers did not have an arrest warrant.2 There is conflicting and

contested evidence that, at some point that evening, Coffey called

Brown's cell phone from his own with the number DeVlaminck had

provided, and that Brown's cell phone rang.

The Government filed a one-count indictment charging

Brown with being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1). Brown claimed that his arrest was illegal,

and moved to suppress the cell phone, any information on the cell

phone, and any statements made by him at the scene or at booking.

The district court held a hearing at which Coffey, L'Esperance, and

2
Based in part on a description of DeVlaminck's arrest and his
statements incriminating Brown, the police were able to obtain a
warrant to search Brown's garage, which was executed later that
night. The search produced a bag containing twenty-eight rounds of
nine-millimeter ammunition. The district court denied Brown's
motion to suppress this ammunition. Brown, 322 F. Supp. 2d. at
109. In a special-verdict form, the jury acquitted Brown of
possessing this ammunition.

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another officer testified. In their testimony, Coffey and

L'Esperance stated that, during the controlled cell phone

conversation, they recognized Brown's voice as the one they had

heard hundreds of times over the course of the drug investigation

involving him in the early 1990s; L'Esperance had also had many

face-to-face conversations with Brown. The district court denied

the motion to suppress in a written decision, finding that (1)

there was probable cause to arrest Brown; (2) the officers did not

need a warrant to arrest Brown because he was not in his home or

the curtilage thereof; and (3) even if he were in the curtilage,

the officers' reasonable fear that he would conceal evidence if

DeVlaminck did not return quickly provided exigent circumstances

and dispensed with the need for an arrest warrant.

Brown made a number of motions in limine, two of which

are at issue in this appeal. In the first motion, Brown sought to

exclude the anticipated testimony of Coffey and L'Esperance that

they recognized him as the person speaking with DeVlaminck during

the controlled cell phone conversation. Brown claimed that

evidence of these officers' identification of his voice would be

unreliable and unfairly prejudicial, particularly considering that

he had, in the interim, undergone cancer surgery resulting in the

removal of parts of his tongue. The district court denied the

motion. In the second motion in limine, Brown sought to exclude

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Coffey's anticipated testimony that he called Brown's cell phone

and that it rang. The district court also denied this motion.

On July 15, 2004, the jury found Brown guilty of

possessing the guns and ammunition seized from DeVlaminck. In the

Presentence Report ("PSR"), the probation officer calculated that

Brown's Guidelines Sentencing Range ("GSR") was fifty-one to sixty-

three months. The PSR also took into account what the probation

officer determined were three prior convictions: (1) a 1980

conviction for intimidation of a witness, in violation of Mass.

Gen. Laws ch. 268, § 13B; (2) a 1982 conviction for assault and

battery on a police officer ("ABPO"), in violation of Mass. Gen.

Laws ch. 265, § 13D; and (3) a 1992 federal conviction for

distributing cocaine. As a result of these three predicate

convictions -- one for a "serious drug offense"3 and two for

"violent felonies," see 18 U.S.C. § 924(e)(1) -- the PSR concluded

that Brown qualified as an armed career criminal ("ACC") under the

ACCA. Brown was accordingly subject to a fifteen-year mandatory

minimum sentence. Id. Brown vigorously challenged his status as

an ACC before the district court, arguing on both legal and factual

grounds that neither the witness-intimidation conviction nor the

ABPO conviction could be considered as ACCA predicates; among

3
Brown concedes that the 1992 conviction for distributing cocaine
qualifies as an ACCA predicate because it is a "serious drug
offense." 18 U.S.C. § 924(e)(1) (2000).

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Brown's arguments was that the Government had failed to prove the

fact of his 1982 ABPO conviction.4

On February 24, 2005, the district court adopted the

PSR's recommendations and sentenced Brown as an ACC to fifteen

years. On March 1, 2005, the Supreme Court handed down Shepard,

and on April 1, 2005, Brown moved for resentencing. He argued

that, in determining that he committed the violent varieties of

witness intimidation and ABPO, the district court had engaged in

judicial factfinding of the type now prohibited by Shepard. The

district court agreed, quashed Brown's sentence, and ordered that

a resentencing hearing be scheduled.

At the ensuing November 10, 2005 resentencing hearing,

the parties debated whether Brown could still be considered an ACC,

and the focus was on whether Brown's ABPO conviction qualified as

an ACCA predicate.5 The Government argued that Brown could be

sentenced as an ACC because, according to United States v.

Fernández, 121 F.3d 777, 779 (1st Cir. 1997), Massachusetts ABPO is

categorically a violent felony for ACCA purposes, and Shepard had

4
While the Government eventually managed to come up with
certified documentation concerning the 1980 witness-intimidation
conviction, it was never able to locate any documentation for the
ABPO conviction beyond the short entry in the PSR itself. See PSR
¶ 33.
5
Brown's witness-intimidation conviction was not discussed at the
resentencing hearing, and it is not clear why. The district court
based its decision not to apply the ACCA on the ground that at
least one of the three necessary predicates -- the ABPO conviction
-- did not qualify as a violent felony.

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not rendered Fernández obsolete. The district court rejected this

argument and held that, since it could not determine whether

Brown's crime was violent or nonviolent, it could not count it as

an ACCA predicate. The court consequently sentenced Brown to the

original GSR maximum of sixty-three months.

II. The Motion to Suppress

Brown appeals the denial of his motion to suppress. He

does not now claim that the police lacked probable cause to arrest

him, but maintains that he was in the curtilage of his home and

that the police lacked exigent circumstances to arrest him without

a warrant. We affirm the denial of the motion.

A. Standard of Review

When considering whether a certain location qualifies as

curtilage for Fourth Amendment purposes, we review the district

court's findings of fact for clear error and its conclusions of law

de novo. United States v. Diehl, 276 F.3d 32, 37 (1st Cir. 2002).

"We will uphold a denial of a motion to suppress if any reasonable

view of the evidence supports it." United States v. St. Pierre,

488 F.3d 76, 79 (1st Cir. 2007) (quoting United States v. Kornegay,

410 F.3d 89, 93 (1st Cir. 2005)) (internal quotation marks

omitted).

B. Discussion

With one apparent exception discussed below, Brown does

not challenge the district court's factual findings with respect to

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the motion to suppress, and our examination of the record reveals

no error in these findings, much less clear error. We thus turn

immediately to whether, in light of these facts along with those

adduced at trial,6 the district court erred in determining that

Brown was not in the curtilage of his home.

The Fourth Amendment protects persons from warrantless

arrest inside their homes or other places where they have a

reasonable expectation of privacy. See Payton v. New York, 445

U.S. 573, 586-87 (1980); United States v. Cruz Jiménez, 894 F.2d 1,

6 (1st Cir. 1990). One such place is the curtilage of the home.

6
We are not restricted to reviewing the record as it stood at the
time the district court took its decision on the suppression
motion. Relying on Carroll v. United States, 267 U.S. 132, 162
(1925), our sister circuits have taken the view that, if facts
presented at trial support the district court's denial of the
motion to suppress, the appellate court may consider them. See,
e.g., United States v. $557,933.89, More or Less, in U.S. Funds,
287 F.3d 66, 83 (2d Cir. 2002); United States v. Bradford, 78 F.3d
1216, 1222 (7th Cir. 1996); United States v. Han, 74 F.3d 537, 539
(4th Cir. 1996); United States v. Villabona-Garnica, 63 F.3d 1051,
1055 (11th Cir. 1995); United States v. Martin, 982 F.2d 1236, 1241
n.2 (8th Cir. 1993); United States v. Perkins, 994 F.2d 1184, 1188
(6th Cir. 1993); United States v. Corral, 970 F.2d 719, 723 (10th
Cir. 1992); United States v. Hicks, 978 F.2d 722, 725 (D.C. Cir.
1992); Virgin Islands v. Williams, 739 F.2d 936, 939 (3d Cir.
1984); United States v. Pearson, 448 F.2d 1207, 1210 (5th Cir.
1971); Rocha v. United States, 387 F.2d 1019, 1020 (9th Cir. 1967).
We have acknowledged that this rule "apparently is settled law,"
United States v. Vargas, 633 F.2d 891, 895 n.6 (1st Cir. 1980).
While we take note of arguments against the rule made by academics,
see, e.g., 6 Wayne R. LaFave, Search and Seizure § 11.7(d) (4th ed.
2004), and the different practice in some states, see, e.g.,
Commonwealth v. Grandison, 741 N.E.2d 25, 29-30 (Mass. 2001) (no
recourse to trial facts in reviewing decision on motion to
suppress), we feel bound to follow it unless and until an en banc
panel decides otherwise. See United States v. Baskin, 424 F.3d 1,
4 n.2 (1st Cir. 2005).

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Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000). Brown argues

that he was standing in the curtilage of his home when he was

arrested, and since the police lacked a warrant, the arrest

violated the Fourth Amendment.

When determining whether a given location falls within

the home's curtilage, we look to whether it is "so intimately tied

to the home itself that it should be placed under the home's

'umbrella' of Fourth Amendment protection." Diehl, 276 F.3d at 38

(quoting United States v. Dunn, 480 U.S. 294, 301 (1987)) (internal

quotation marks omitted). The Supreme Court has identified four

specific criteria to guide the analysis:

[1] the proximity of the area claimed to be
curtilage to the home, [2] whether the area is
included within an enclosure surrounding the
home, [3] the nature of the uses to which the
area is put, and [4] the steps taken by the
resident to protect the area from observation
by people passing by.

Id. at 38 (quoting Dunn, 480 U.S. at 301). We take these factors

in turn.

The first Dunn factor would seem to favor a finding that

Brown was in the curtilage when arrested: he was arrested at the

top of his driveway, adjacent to the garage. The record is unclear

on precisely how far this location was from the trailer in which

Brown resided. Yet even assuming the two were close together,

proximity to the dwelling house is not dispositive. United States

v. French, 291 F.3d 945, 952 (7th Cir. 2002). Application of the

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second Dunn factor is unhelpful in the circumstances: there

appears to be no evidence on record as to whether there was an

enclosure surrounding all or part of Brown's property, or internal

enclosures around individual buildings or groups of buildings.

Notwithstanding the fulfillment of the first Dunn factor,

an examination of the third and fourth factors leads us to a

different conclusion. Although determining whether a given area

falls within the curtilage "depends on the facts of a case,"

Rosencranz v. United States, 356 F.2d 310, 313 (1st Cir. 1966); see

also Diehl, 276 F.3d at 39 (rejecting the notion that driveways can

never fall within the curtilage), our past cases reveal a number of

general principles with respect to driveways. If the relevant part

of the driveway is freely exposed to public view, it does not fall

within the curtilage. See, e.g., United States v. Roccio, 981

F.2d 587, 591 (1st Cir. 1992).7 This holds true even where the

relevant part of the driveway is somewhat removed from a public

7
Some of our sister circuits appear to have taken different
positions on whether a driveway that otherwise meets the curtilage
requirements but is exposed to public view is not curtilage, or if
it is nonetheless curtilage, albeit curtilage not afforded the same
Fourth Amendment protections. Compare, e.g., French, 291 F.3d at
953 (7th Cir. 2002) (driveway in public view not part of
curtilage); and United States v. Ventling, 678 F.2d 63, 66 (8th
Cir. 1982) (open driveway in public view not curtilage despite "No
Trespassing" signs); with United States v. Smith, 783 F.2d 648, 651
(6th Cir. 1986) ("The fact that a driveway is within the curtilage
of a house is not determinative if its accessibility and visibility
from a public highway rule out any reasonable expectation of
privacy."). We endorse the position of the Seventh and Eighth
Circuits as the more doctrinally sound.

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road or street, and its viewing by passersby is only occasional.

See, e.g., United States v. Hensel, 699 F.2d 18, 32-33 (1st Cir.

1983). Hence, in order for a part of a driveway to be considered

within the home's curtilage, public viewing of it must be, at most,

very infrequent. The remoteness of the relevant part of the

driveway and steps taken by the resident to discourage public entry

or observation militate toward a finding that it falls within the

curtilage. See Diehl, 276 F.3d at 37, 41 (relevant part of

driveway fell within curtilage where it was reached only by

proceeding 700 feet along discontinued town road and then 500 feet

along the driveway; residents had posted "no trespassing" signs at

its entrance, had their mail delivered to a post office box in

town, and had instructed United Parcel Service to leave parcels at

a store; and members of the public hardly ever entered).

It is clear that the area where Brown was arrested was

not visible from the public street, due in part to the 400-foot

length of the driveway and vegetation between the street and the

relevant area. Nevertheless, the Brown family had erected no

barriers, had posted no signs, and had taken no other action to

prevent or discourage public entry. Cf. Smith, 783 F.2d at 651-52

(no Fourth Amendment protection for area of driveway near

defendant's house, some 225 to 300 feet from public road with no

barrier preventing or discouraging entry). Indeed, although there

were also no signs directing visitors to the motor-repair business

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located in Brown's garage, Brown admits that he allowed patrons

onto the property to drop off and pick up motors.8 The Brown

property thus contrasts sharply with that in Diehl, where the

residents went to extraordinary lengths to fashion "a locus as free

from observation by passersby as one could conceive." Diehl, 276

F.3d at 41. This, in our view, is the critical distinction between

this case and Diehl: Brown could have no reasonable expectation of

privacy in an outdoor area to which members of the public were

given ready access.9

We conclude that, when Brown was placed under arrest, he

was not within an area coming under his home's umbrella of Fourth

Amendment protection. Diehl, 276 F.3d at 38. As a consequence,

the police did not need a warrant to arrest him, see United States

v. Martínez-Molina, 64 F.3d 719, 726 (1st Cir. 1995), and we need

8
Brown states in an affidavit that customers always phoned ahead
before paying him a visit. This fact does not alter our
conclusion.
9
Brown argues in the alternative that he should be regarded as
having effectively been arrested inside his garage, not in the
driveway, because he would not have emerged but for the officers'
arrival. While Brown states in an affidavit that the officers
ordered him out of the garage, other evidence, including Coffey's
trial testimony, indicates that Brown emerged voluntarily, even
before the officers exited their vehicles. The district court
found that he walked out of the garage at the time the officers
reached the end of the driveway. Brown, 322 F. Supp. 2d. at 104.
The district court did not commit clear error in reading the
evidence in this way. Accordingly, we need not decide whether the
garage fell within the curtilage of Brown's home, or whether Brown
could be regarded as having been arrested there had the police
ordered or forced him out onto the driveway.

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not address Brown's further contention that the district court

erred in finding exigent circumstances vitiating the warrant

requirement. We therefore affirm the denial of Brown's motion to

suppress.

III. The Motions in Limine

Brown made two motions in limine that are at issue in

this appeal. The first concerns Coffey's and L'Esperance's trial

testimony that they recognized Brown's voice during the controlled

cell phone conversation between Brown and DeVlaminck. Brown claims

these identifications were unreliable and unfairly prejudicial.

The second concerns Coffey's trial testimony that he called Brown's

cell phone with the number DeVlaminck provided and that it rang.

Brown claims the Government's failure to turn over in discovery

Coffey's cell phone records from the night in question violated

Brady v. Maryland, 373 U.S. 83 (1963). We address the motions in

turn.

A. Standard of Review

We review the district court's rulings on whether to

admit or exclude evidence, including rulings on motions in limine,

for abuse of discretion. United States v. Guerrier, 428 F.3d 76,

79 (1st Cir. 2005). The same standard applies to review of the

district court's determination that the risk of unfair prejudice

does not substantially outweigh the probative value of a given

piece of evidence. United States v. Frabizio, 459 F.3d 80, 90-91

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(1st Cir. 2006); see also United States v. Simon, 842 F.2d 552, 555

(1st Cir. 1988) (district court given "considerable leeway").

"[A]n abuse of discretion occurs when a relevant factor deserving

of significant weight is overlooked, or when an improper factor is

accorded significant weight, or when the court considers the

appropriate mix of factors, but commits a palpable error of

judgment in calibrating the decisional scales." Frabizio, 459 F.3d

at 91 (citation and internal quotation marks omitted).

B. Discussion

1. The First Motion in Limine

Brown argues that evidence of Coffey's and L'Esperance's

identification of his voice should not have been placed before the

jury because the identification was unreliable. We consider the

"totality of the circumstances" to determine whether voice-

identification testimony is sufficiently reliable to be allowed

into evidence. United States v. Panico, 435 F.3d 47, 49 (1st Cir.

2006); see also Fed. R. Evid. 901. Due process requires the

exclusion of such testimony only where there is a "very substantial

likelihood of irreparable misidentification." Panico, 435 F.3d at

49 (quoting United States v. Henderson, 320 F.3d 92, 100 (1st Cir.

2003)).

The district court did not state the reasons for denying

Brown's motion in limine, although it remarked on the reliability

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of Coffey's and L'Esperance's voice-identification evidence in its

earlier decision on Brown's motion to suppress:

While defendant objects to the fact that
neither Cpl. L'Esperance or Lt. Coffey are
trained in voice identification, their prior
familiarity with Brown's voice, gleaned from
hours of listening to his telephone
conversations and debriefing him in person is
more than sufficient to establish the
reliability of their recognition of his voice.

Brown, 322 F. Supp. 2d at 105 n.5.

We agree with these observations. There is abundant

evidence on record that Coffey and L'Esperance had spent a great

deal of time listening to Brown's voice. They transcribed

"hundreds of hours" of tapes from wiretaps during the drug

investigation involving Brown in the early 1990s, and L'Esperance

met Brown in person several times after Brown decided to cooperate

with that investigation. L'Esperance also testified that he saw

and spoke to Brown in a courthouse parking lot a few months prior

to the events at issue here. Given the degree of contact between

these two officers and Brown, we accord very little weight to the

fact that most of it occurred ten or twelve years prior to Brown's

arrest. Indeed, L'Esperance testified that listening to Brown's

voice during the phone conversation with DeVlaminck was like

"listening to a friend," and Brown himself confirmed his apparent

acquaintanceship with L'Esperance by uttering in open court, as

L'Esperance was being led to the witness stand, "David, my boy, how

are we doing?"

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 Brown argues that the voice identifications were

unreliable because Coffey and L'Esperance had not heard him speak

for perhaps ten or twelve years, and his voice had changed

"dramatically" in the interim as a result of cancer surgeries on

his tongue. As support, Brown submitted to the district court the

affidavit of an otolaryngologist stating: "[I]t is likely that

Dennis Brown's speech differs today . . . . Specifically his

articulation of words would be comparatively diminished." We are

unconvinced that Brown's tongue surgeries altered his voice to the

dramatic extent he claims.10 In any event, even if Brown's voice

had changed so substantially as to render it unrecognizable,

L'Esperance's identification of Brown would probably still be

reliable, as the two men had met and spoken in January 2002, after

the surgeries. Finally, there is more to voice identification than

the degree of articulation of words. L'Esperance stated that he

recognized Brown during the phone conversation with DeVlaminck not

only because of the sound of his voice, but also because of the

distinct manner in which Brown speaks.

10
The otolaryngologist who examined Brown concluded that it was
"likely" that his speech had been altered by the surgeries; he had
apparently not heard Brown speak prior to the surgeries. According
to the otolaryngologist's affidavit, the surgeries were performed
by different doctors in 2001 at a different hospital. His somewhat
tentative finding that Brown's "articulation of words would be
comparatively diminished," based in part on a note in Brown's
medical record that he has "some difficulty with speech," does not
compel the conclusion that Brown's voice would have been
unrecognizable to those who knew him before the surgeries.

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 Our opinion in Ricci v. Urso, 974 F.2d 5 (1st Cir. 1992),

cited by Brown as support for his position, is easily

distinguishable. There, police officers suspected Ricci of being

a gambler who was under investigation, and whose voice they had

recorded from wiretapped conversations. One of the officers called

Ricci and taped a conversation with him of less than a minute, and

compared the tape with an earlier-made recording of the gambler's

voice. The officer concluded the voices were similar, and that

Ricci was therefore the gambler. Ricci, 974 F.2d at 6. We found

this voice identification unreliable: the officer made the

recording on a hand-held recorder, he had no expert training in

voice identification, and the entire conversation with Ricci lasted

less than sixty seconds. We concluded that "the voice analysis

appears no more reliable than the identification of a suspect from

a brief visual glimpse." Id. at 7.

As in Ricci, nothing in the record indicates that either

Coffey or L'Esperance had special training in voice identification,

and DeVlaminck's cell phone records from the night in question show

that the conversation with Brown was very brief, perhaps under a

minute. Nevertheless, in contrast to the officer in Ricci, Coffey

and L'Esperance had extensive experience listening to Brown's

voice, and L'Esperance had met with Brown personally and recently.

Their familiarity with Brown's voice was much more akin to that of

the defendant's ex-husband and friend in United States v. Gilbert,

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181 F.3d 152 (1st Cir. 1999); there, we held identifications made

by the ex-husband and friend of the defendant's voice from the

audio tape of a phoned-in bomb threat to be sufficiently reliable,

despite some suggestive elements in the procedure. See id. at 163.

Coffey also testified that he had put the volume of the cell phone

on the loudest setting, so that the person on the other end would

be audible even without placing one's ear to the receiver;

according to Coffey, "[W]e could all hear it as clear as day."

While we acknowledge that the conditions here -- with

three men huddled together listening to the same cell phone -- were

not the best for making a voice identification, the defects were

not so grave as to render the district court's ruling on

reliability an abuse of discretion. The totality of the

circumstances make it quite plausible that Coffey and L'Esperance

could hear Brown clearly, and could recognize and remember his

voice upon hearing him.

Brown also claims that the district court abused its

discretion in failing to grant the first motion in limine under

Federal Rule of Evidence 403: if Coffey and L'Esperance were to

testify as to why they were familiar with Brown's voice, they would

have to discuss how Brown was the subject of an extensive

investigation by a drug taskforce, and such testimony would leave

the jurors with the unfair impression that he was a career

criminal. According to Brown, this danger substantially outweighed

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any probative value the officers' voice-identification testimony

may have had. See Fed. R. Evid. 403.

In our view, Coffey's and L'Esperance's identifications

of Brown's voice in the cell phone conversation had considerable

probative value to an issue directly in dispute: whether Brown was

the man on the other end of the line, instructing DeVlaminck to

sell the guns and return with the money, tends to show that Brown

was the owner of the guns, or at least had a significant stake in

their sale. On the other side of the equation, any risk of unfair

prejudice resulting from testimony on Brown's criminal past was

greatly attenuated by the cautious way in which the parties

fashioned their arguments and elicited testimony at trial. While

both parties' closing arguments referred to the wiretap

investigation, neither stated the purpose of the investigation or

even that it involved suspected criminal activity. Similarly,

Coffey testified that Brown had been the subject of a wiretap

investigation, but did not reveal its purpose or any details of it,

or that Brown was suspected of committing a crime. L'Esperance

likewise testified that Brown had been wiretapped and recorded as

part of a "law enforcement initiative."

Brown stipulated at trial that he had previously been

convicted of a crime punishable by a term of imprisonment exceeding

one year. The district court informed the jury of this

stipulation, and cautioned the jurors not to speculate on the

-20-
nature of the crime of which Brown had been convicted. While the

wiretap testimony may have led some jurors to speculate as to why

Brown was investigated in the early 1990s, it is difficult to

imagine any significant danger of unfair prejudice accruing to

Brown that would outweigh the probative value of the testimony.

Any such juror probably simply assumed the investigation related to

the crime Brown had stipulated to committing. It is highly

unlikely that any juror based all or a substantial portion of his

or her decision regarding Brown's guilt on the fact that he had

been the subject of a wiretap investigation. See United States v.

Flemmi, 402 F.3d 79, 86 n.8 (1st Cir. 2005) ("Evidence is unfairly

prejudicial if it invites the jury to render a verdict on an

improper emotional basis." (quoting United States v. Varoudakis,

233 F.3d 113, 122 (1st Cir. 2000)) (internal quotation marks

omitted)). In any event, we need not strike the Rule 403 balance

ourselves, but need merely determine whether the district court

abused its discretion in striking the balance. It is clear that

there was no abuse of discretion here. See United States v.

Charles, 456 F.3d 249, 257 (1st Cir. 2006) (reversal of district

court's Rule 403 judgment called for "only rarely" and "in

extraordinarily compelling circumstances" (quoting Flemmi, 402 F.3d

at 86) (internal quotation marks omitted)).

-21-
 We accordingly conclude that the district court did not

abuse its discretion in denying Brown's motion in limine to exclude

the voice-identification testimony of Coffey and L'Esperance.

2. The Second Motion in Limine11

At the motion to suppress hearing, Coffey testified that

he confiscated Brown's phone when Brown was arrested, called it

from his own phone using the number DeVlaminck had provided, and

that it rang. On cross-examination, Brown confronted Coffey with

Brown's phone records from that evening, which show one call at

7:29 p.m. and the next at 8:40 p.m. Coffey testified that he must

have called at 8:40 p.m., while still at the Brown property. Brown

then showed Coffey a booking sheet indicating that Brown had been

booked at 8:15 p.m., and that a cell phone had been inventoried as

one of Brown's possessions. Coffey responded that this entry did

not necessarily mean that Brown's phone was seized at 8:15 p.m.

Three days later, Brown's counsel sent a letter to the

Assistant U.S. Attorney asking to be provided with "records of

Coffey's cell phone showing the telephone call to Dennis Brown's

cell phone." The Government did not provide such records. Brown

11
Brown argues that Coffey's phone records were Brady material the
Government failed to hand over. The Government urges us to review
this argument for plain error, as Brown did not raise it below.
See United States v. Hansen, 434 F.3d 92, 104 (1st Cir. 2006).
Because we conclude that there was no error at all in the district
court's refusal to exclude Coffey's testimony on the confirmatory
phone call, we need not decide whether Brown's claim is subject to
review for plain error, instead of abuse of discretion.

-22-
then filed the motion in limine, claiming that any testimony on

Coffey's confirmatory phone call should be excluded on the ground

that it is "contradicted by affirmative undisputed evidence in the

record," including Brown's cell phone records, the booking sheet,

and police records that show Coffey was at the Salisbury police

station interrogating DeVlaminck between 8:15 p.m. and 9:25 p.m.

Brown also asserted that the testimony should be barred because the

Government failed to hand over Coffey's phone records in spite of

Brown's request.

At trial, prior to Coffey's testimony, Brown reminded the

district court of the still-pending motion in limine, emphasizing

that it should be granted because the Government had failed to hand

over Coffey's phone records. The Government responded that it did

not have the records. The district court issued a brief oral

ruling disposing of the motion: "The records were equally

accessible to both sides. [Brown] could have issued a subpoena for

them. So the motion is denied."

Testimony at trial on this issue was predictably

confused. An officer who was present at Brown's arrest testified

that Coffey dialed Brown's number immediately after confiscating

the phone and that it rang. Coffey testified on direct examination

that he called the phone and it rang, but that he did not remember

whether he called while still at Brown's property or sometime

later. On cross-examination, Coffey testified that, despite what

-23-
was reflected in the 8:15 p.m. booking entry, "we were still

looking at [Brown's] personal property," that the phone was sent to

another police station, and that "the Salisbury Police did not have

physical possession of that phone at 8:15." When shown evidence

that he was at the Salisbury police station interrogating

DeVlaminck between 8:15 p.m. and 9:25 p.m., Coffey acknowledged

that he was not still at the Brown property at 8:40 p.m., when

Brown's phone records show an incoming call.

Brown now appeals the district court's denial of his

motion in limine. He argues that Coffey's phone records were Brady

material because they would have directly contradicted Coffey's

testimony on a key issue: the fact that Coffey called the number

DeVlaminck provided and Brown's phone rang bolstered the

Government's claim that it was Brown with whom DeVlaminck had been

speaking during the earlier controlled phone conversation.

Evidence that no phone call was made would also tend to discredit

Coffey in general.

The Supreme Court's holding in Brady requires the

Government to disclose exculpatory evidence in its possession that

is "material either to guilt or to punishment." Brady, 373 U.S. at

87. Information is "material" if there is "a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different." United

States v. Caro-Muñiz, 406 F.3d 22, 29 (1st Cir. 2005) (quoting

-24-
United States v. Rosario-Peralta, 175 F.3d 48, 53 (1st Cir. 1999)).

To vacate a conviction because of a Brady violation, the defendant

must make a three-part showing: "[1] the evidence at issue [was]

favorable to [him], either because it is exculpatory, or because it

is impeaching; [2] that evidence [was] suppressed by the [s]tate,

either willfully or inadvertently; and [3] prejudice . . . ensued."

United States v. Josleyn, 206 F.3d 144, 153 (1st Cir. 2000)

(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

The Government maintains that Coffey's phone records are

not, and never have been, in its custody or control, and that it

therefore has no obligation to seek them out and disclose them.

See United States v. Bender, 304 F.3d 161, 163 (1st Cir. 2002).

Yet even assuming for the sake of argument that Coffey's phone

records were in the actual or constructive possession of the

Government, and that they would indicate that Coffey made no call

to Brown's phone on the evening in question, Brown has still failed

to satisfy the third element of the Strickler test -- that is, that

prejudice ensued. See United States v. Nelson-Rodríguez, 319 F.3d

12, 35 (1st Cir. 2003) (Brady does not "provide[] grounds for

relief unless the exclusion or failure to produce prejudiced [the]

defense."). The jurors heard Coffey's testimony and that of the

other officer, had the booking sheet and Brown's phone records

before them, and still decided the evidence established beyond a

reasonable doubt that Brown possessed the guns recovered from

-25-
DeVlaminck. They obviously believed Coffey notwithstanding the

implausibilities in the relevant portions of his testimony, or

disbelieved him but believed the considerable quantum of other

evidence -- such as DeVlaminck's and L'Esperance's testimony --

linking Brown to the guns. It is highly unlikely that the verdict

would have been any different had Coffey's phone records been in

evidence, no matter what they may have indicated, or that the

records or Coffey's testimony in response to them would have "put

the whole case in such a different light as to undermine confidence

in the verdict." United States v. Casas, 356 F.3d 104, 114 (1st

Cir. 2004); see also United States v. Dumas, 207 F.3d 11, 16 (1st

Cir. 2000) ("Impeachment evidence, even that which tends to further

undermine the credibility of the key Government witness whose

credibility has already been shaken due to extensive

cross-examination, does not create a reasonable doubt that did not

otherwise exist where that evidence is cumulative or collateral."

(quoting United States v. Shelton, 588 F.2d 1242, 1248 (9th Cir.

1978))). The failure to provide the purported Brady material did

not prejudice Brown, and the district court's refusal to exclude

Coffey's testimony on the confirmatory phone call was accordingly

not error.

IV. The Allocation of Peremptory Challenges

Brown next argues that his conviction should be reversed

or retrial granted because the district court, in its manner of

-26-
selecting alternate jurors, violated Federal Rule of Criminal

Procedure 24 and diluted the proportion of peremptory challenges to

which he was entitled vis-à-vis the Government.12

A. Standard of Review

The Government argues for plain error review because

Brown failed to make a timely objection to the district court's

method of selecting alternate jurors. We agree. See United States

v. McFarlane, 491 F.3d 53, 60 (1st Cir. 2007). Under the plain

error standard, Brown must prove "(1) an error, (2) that is plain,

and (3) that affects substantial rights," and that the error

"seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." United States v. Connolly, 341 F.3d 16,

31 (1st Cir. 2003) (citations and internal quotation marks

omitted).

B. Discussion

The district court seated fourteen jurors using the

"struck" method. During jury empanelment, the court gave Brown

eleven peremptory challenges: the ten from Rule 24(b)(2) plus the

12
Rule 24 establishes the method of selecting jurors and alternate
jurors, and specifies the number of peremptory challenges available
to each party. In a non-capital felony case such as this one, Rule
24(b) guarantees the defendant ten peremptory challenges and the
Government six. Fed. R. Crim. P. 24(b)(2). Rule 24(c) allows the
district court to empanel alternate jurors. Fed. R. Crim.
P. 24(c)(2)(B). When the court empanels two alternates, each party
is entitled to one additional peremptory challenge, and this
challenge "may be used only to remove alternate jurors." Fed. R.
Crim. P. 24(c)(4)(A).

-27-
one from Rule 24(c)(4). It gave the Government seven: the six

from Rule 24(b)(2) plus the one from Rule 24(c)(4). At the close

of trial, before sending the jury to deliberate, the district court

drew the names of two of the fourteen jurors by lot and designated

them as the alternates.

Brown claims that this method of empaneling alternate

jurors and allocating peremptory challenges violated Rule 24. He

is correct. The mandate in Rule 24(c)(4) that "additional

challenges may be used only to remove alternate jurors" implies

that these alternates must be designated at voir dire, when the

parties still have the opportunity to use peremptory challenges to

remove potential jurors, and not by lottery at the end of trial.

This conclusion comports with that reached by other circuits. See,

e.g., United States v. Brewer, 199 F.3d 1283, 1287 (11th Cir.

2000); United States v. Love, 134 F.3d 595, 601 (4th Cir. 1998).

Brown then mounts an imaginative but ultimately

unavailing argument as to how he was harmed by this violation. Had

the district court followed Rule 24, Brown would have had ten

peremptory challenges to use against the pool of persons from which

the twelve regular jurors were be drawn, while the Government would

have had only six; in other words, Brown would have had 167 percent

of the Government's challenges. By lumping each party's extra

peremptory challenge for the two alternates together with the

original challenges, the district court gave Brown eleven

-28-
challenges and the Government seven; Brown thus had only 157

percent of the Government's challenges to use against a pool of

persons from which twelve regular jurors and two alternates would

be drawn. Brown contends that his loss of advantage over the

Government was significant because the trial was very short, and it

was unlikely that any alternate would end up stepping in for a

regular juror; indeed, as it turned out, the alternates were not

used. Although he concedes that he can point to no concrete

prejudice, he argues that prejudice should be presumed because the

variation may have "reverberate[d] throughout the process of

challenging jurors and result[ed] in a dramatically different panel

deciding [his] case."

Brown greatly exaggerates the consequences of the

district court's error, and the remedy he asks for -- reversal or

retrial -- is far out of proportion to the harm he claims he

suffered. We addressed this very question more than twenty-five

years ago under an earlier version of Rule 24. In United States v.

Flaherty, 668 F.2d 566, 601 (1st Cir. 1981), the district court

empaneled two alternates, and each defendant was thus entitled to

one additional peremptory challenge in addition to the original

ten. Disregarding the rule's express mandate that "[t]he

additional peremptory challenges may be used against an alternate

juror only, and the other peremptory challenges allowed . . . may

not be used against an alternate juror," the district court

-29-
combined the original and additional peremptory challenges together

to be used against a pool containing both regular jurors and

alternates. We held as follows:

Despite the clear transgression of the rule,
we do not perceive how defendants' exercise of
their peremptory challenges was curtailed in
any way. . . . We do not think that combining
the regular and alternate challenges amounts
to a violation of defendants' substantial
rights. . . . This, however, does not put our
imprimatur on the court's procedure for the
exercise of peremptory challenges.

Id. While Rule 24 has since been amended, its substance remains

the same with respect to the prohibition on combining regular and

alternate challenges in this manner. As in Flaherty, while we

regret the district court's failure to follow the rule, we cannot

imagine how Brown's substantial rights could possibly have been

prejudiced.13 There was no prejudice here and certainly no plain

error.

Having concluded that Brown's conviction stands, we turn

now to the sentence imposed by the district court.

V. The Sentence

The Government appeals the district court's sentence of

sixty-three months. It argues that both ABPO and witness

intimidation in Massachusetts law are categorically violent

13
Although the record of the jury empanelment proceeding is not
entirely clear, it appears to show that thirteen jurors were
dismissed based on peremptory challenges exercised by the parties.
The record does not reveal how many of the thirteen peremptory
challenges were used by each party.

-30-
felonies for purposes of the ACCA, and that the district court

erred in not sentencing Brown as an ACC.

A. Standard of Review

We review de novo whether a prior conviction qualifies as

a violent felony for purposes of the ACCA. United States v. Pratt,

496 F.3d 124, 130 (1st Cir. 2007); see also United States v.

Santos, 363 F.3d 19, 22 (1st Cir. 2004) (same standard for U.S.S.G.

§ 4B1.1).

B. Discussion

Recently, in United States v. Holloway, 499 F.3d 114 (1st

Cir. 2007), we addressed nearly the same question as the one at

issue in Brown's resentencing hearing, and adopted a position

substantially in line with that of the Government: notwithstanding

Shepard, assault and battery under Massachusetts law is still

categorically a violent felony for ACCA purposes. See id. at 118.

This holding strongly suggests what, in other circumstances, may

have been the outcome in this case. In light of what we say below,

however, we do not reach this question, nor need we address whether

Massachusetts witness intimidation is categorically a violent

felony.

The record suffers from an infirmity that renders us

unable to hold the ACCA applicable. As Brown points out, the

evidence concerning his ABPO conviction is extraordinarily sparse.

The relevant paragraph of the PSR lists the following pieces of

-31-
information: that Brown was charged with the offense of ABPO in

Newburyport District Court; that the date of Brown's arraignment

was August 2, 1982; that Brown was represented by counsel; and that

the matter was disposed of on June 13, 1983. Next to this date,

"G. $625 fine" appears. See PSR ¶ 33. Where a description of the

facts would normally appear, the PSR states that "[n]o information

was available regarding this offense." Id. Brown concedes that he

was charged with this offense, but contends that, on his

recollection, there was no guilty finding, and the case was

dismissed upon payment of the $625 fine. The Government has not

produced -- and has apparently been unable to locate -- any

documentation or other evidence relating to this offense, apart

from the PSR entry.

Brown contests the accuracy of the PSR entry in question,

and has consistently maintained, both in the district court and

before us, that the Government failed to satisfy its burden of

proving the fact of the Massachusetts ABPO conviction. We reject

the Government's contention that Brown somehow conceded his ABPO

conviction by arguing at various points that it did not qualify as

an ACCA predicate because the underlying circumstances were

nonviolent. We read these merely as arguments in the alternative,

in case the district court found over Brown's objection that the

three proffered predicates in fact existed. Brown's objection to

the existence of the ABPO conviction was spelled out in a

-32-
sentencing memorandum to the district court dated January 5, 2005,

and the point was debated at some length during the February 24,

2005 sentencing hearing. At that hearing, the district court

acknowledged that "[t]he awkward aspect of this case is that all

the records have been lost, as best as anyone can tell." It

nonetheless held it was "satisfied with the accuracy of the records

that have been presented . . . confirming the three prior

convictions," and sentenced Brown to the fifteen-year ACCA

minimum.14

This determination was in error. The Government's burden

of proving a predicate conviction for sentencing purposes is

admittedly a "modest" one that can be satisfied "in divers ways,"

including by introducing a certified copy of the judgment, or by a

statement in the PSR. United States v. Cordero, 42 F.3d 697, 701

(1st Cir. 1994); accord United States v. Barbour, 393 F.3d 82, 93

(1st Cir. 2004). However, when a defendant challenges a conviction

laid out in the PSR, more is required. This case provides ample

14
When Brown contended at the hearing that the burden was on the
government to prove the fact of the ABPO conviction, the district
court held, in reliance on Parke v. Raley, 506 U.S. 20 (1992), that
the burden of production was on the defendant. Yet Parke is
unavailing to the Government in these circumstances. The statute
at issue in Parke required, as does the ACCA, that the prosecution
prove the fact of a final judgment. Id. at 23-24. Once the
prosecution has done so, the Supreme Court held, a "presumption of
regularity" attaches to the judgment that the defendant bears a
heavy burden of rebutting. Id. The Government in this case has
not managed to get past the hurdle of proving the final judgment's
existence.

-33-
reason why. Brown was sentenced to five years and three months in

prison. He was arrested and taken into custody on June 18, 2002,

and has presumably served all or most of his five years and three

months by now. The mandatory minimum under the ACCA is fifteen

years. 18 U.S.C. § 924(e)(1). The Government would have us keep

Brown in prison for ten more years based on nothing more than the

letter "G" in paragraph 33 of the PSR. Indeed, as the PSR itself

states, "No information was available regarding this offense." PSR

¶ 33. In the face of this reality, the Government cannot be said

to have met even its modest initial burden when it can produce

nothing more. This was also the conclusion of the District of

Columbia Circuit:

[T]he Government may not simply rely on
assertions in a presentence report if those
assertions are contested by the defendant.
Thus, when the defendant calls into dispute a
presentence report's description of an alleged
prior conviction, the Government must
demonstrate that the description in the report
is based on a sufficiently reliable source to
establish the accuracy of that description.

United States v. Price, 409 F.3d 436, 444 (D.C. Cir. 2005); cf.

United States v. Dueño, 171 F.3d 3, 7 (1st Cir. 1999) (contested

PSR entry, where none of the evidence supporting the entry appeared

in the record, insufficient on its own to prove existence of guilty

plea for purposes of Guidelines enhancement).15

15
Other cases that treat the sufficiency of a presentence report
for this purpose refer to "uncontroverted" reports. See Cordero,
42 F.3d at 701; see also United States v. Romero-Rendón, 220 F.3d

-34-
 Accordingly, we hold that the ACCA is inapplicable in the

circumstances because the Government has proven, at most, just two

prior convictions that qualify as predicates under 18 U.S.C.

§ 924(e). We consequently arrive at the same conclusion reached by

the district court when it resentenced Brown, albeit for a

different reason, and see no need to disturb the court's sentence

of sixty-three months. See Bristol Energy Corp. v. N.H. Pub.

Utils. Comm'n, 13 F.3d 471, 478 (1st Cir. 1994) (Court of Appeals

may affirm on any theory supported by the record). Since we hold

the ACCA inapplicable, we need not address Brown's various

challenges to its constitutionality.

VI. Conclusion

Brown's conviction is affirmed. Brown's sentence is

affirmed, but on different grounds.

1159, 1164-65 (9th Cir. 2000) (no error for district court to rely
on PSR entry as evidence of conviction for ACCA enhancement where
defendant had not challenges entry's accuracy); United States v.
Hudspeth, 42 F.3d 1015, 1019 n.6 (7th Cir. 1994) (en banc) ("[A]
presentence investigation report, if not challenged, will normally
satisfy this showing."); cf. United States v. Serrano-Beauvaix, 400
F.3d 50, 54-55 (1st Cir. 2005) (no error for district court to rely
on uncontroverted PSR entry as proof of conviction for purposes of
calculating Guidelines criminal history score).

-35-