USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1624
UNITED STATES,
Appellee,
v.
THOMAS BARTELHO,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Stahl and Lynch, Circuit Judges.
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Christopher W. Dilworth, by Appointment of the Court, for
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appellant.
Margaret D. McGaughey, Assistant United States Attorney,
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with whom Jay P. McCloskey, United States Attorney, and Richard
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W. Murphy, Assistant United States Attorney, were on brief for
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appellee.
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December 5, 1995
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TORRUELLA, Chief Judge. Defendant-appellant Thomas
TORRUELLA, Chief Judge.
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Bartelho ("Bartelho") challenges his conviction for possession of
a firearm by a convicted felon under 18 U.S.C. 922 and 924.
After a jury trial in the United States District Court for the
District of Maine, Bartelho was sentenced on May 26, 1995 to 120
months incarceration. We affirm his conviction.
I. BACKGROUND
I. BACKGROUND
Viewed in the light most favorable to the government,
United States v. Robles, 45 F.3d 1, 2 (1st Cir.), cert. denied,
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115 S. Ct. 1416 (1995), a reasonable jury could have found the
following facts.
At about 9:20 a.m. on Saturday, July 2, 1994, the
Windham Police Department received a call from Lori Daigle
("Daigle"), the resident of the first floor apartment in a two-
unit residence on Route 115 in Windham. Daigle reported an
ongoing disturbance in the upstairs unit. Bartelho, who lived
with his girlfriend Patricia Harris ("Harris") and their two
young children, rented that apartment (the "Harris-Bartelho
apartment"). Daigle stated to the dispatcher that one of her
upstairs neighbors, Harris, had complained to her at 2:00 a.m. of
being assaulted by her boyfriend, identified then as "Tommy."
Daigle also told the dispatcher that Harris had asked her to take
her to the hospital. Furthermore, Daigle reported that Harris
expressed fear for her 18-month-old child, and that "Tommy" had
chased her down the road with a loaded rifle. Daigle also
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explained to the dispatcher that she had not heard the boyfriend
leave, and so he must still have been upstairs.
Four Windham police officers were dispatched to the
scene. Meanwhile, dispatcher John Perruzzi tried to reach Harris
by phone in the Harris-Bartelho apartment. Finding the line
busy, he had the phone company break in, and upon reaching
Harris, convinced her to walk out of the building to talk with
the officers waiting outside.
Harris spoke to Sergeant David Thomas and Officer
Raymond Williams. Officer Williams told Harris that the police
were responding to a report that she had been assaulted and
threatened with a firearm. Harris answered that she had had an
argument with her boyfriend but that he had left 30 minutes
previously. The officers observed that Harris' eyes were puffy,
that she appeared nervous, and that she would not make eye
contact with them. In accord with their domestic violence
training, the officers concluded that Harris was protecting
Bartelho, possibly out of fear of reprisal. In view of Daigle's
report, they did not believe Harris' statement, and instead asked
for her permission to enter the Harris-Bartelho apartment, which
she denied.
Sergeant Thomas then told Harris that the officers
would enter the apartment without her permission. Several
factors persuaded the officers to conduct a warrantless search,
including their belief that Harris was lying to protect Bartelho,
Daigle's statement that Bartelho remained in the apartment, the
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fact that Route 115 is a busy highway where the town's Fourth of
July parade was about to begin, and the presence of other
dwellings nearby. As they later testified, they concluded that
if the defendant were allowed to remain in the apartment, a large
number of people would be exposed to the risk of harm.
Officer Williams and Sergeant Thomas climbed the
stairway that led to the Harris-Bartelho apartment's main
entrance. They entered the unlocked front door and searched the
premises. Officer Williams checked the back porch, from which an
enclosed stairway leading to the ground level constituted a
second escape route from the apartment. Officers on the ground
watched both exits as the search took place. After Sergeant
Thomas and Officer Williams failed to find the suspect in the
apartment, Officer Williams checked the back porch more
carefully, and noticed a loaded semiautomatic rifle on top of a
stove on the porch. Officer Williams looked down the porch
stairway, and called out the name "Tommy," whereupon Thomas
Bartelho emerged from his hiding place below.
On July 6, 1994, a warrant was executed authorizing a
search of the Bartelho-Harris apartment for evidence of bank
robbery. Part of the basis for the warrant was the FBI's belief
that the weapon found during the earlier, warrantless search
("the July 2 search") was the same as the one that had been used
in a series of bank robberies. Pursuant to the warrant, another
search was conducted on July 7 ("the July 7 search"), which
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turned up additional items including a quantity of ammunition and
a stock and case for a rifle.
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II. DISCUSSION
II. DISCUSSION
On appeal, Bartelho contends that four issues require
that we overturn his conviction. First, he argues that the
government failed to prove that his firearm civil rights had not
been restored, as he asserts it was required to do. Second, he
contends that the district court wrongly denied his motion to
suppress evidence found during the July 2 and July 7 searches.
Third, he claims that the district court's jury procedures were
improper. Fourth, and finally, he asserts that the district
court erred in allowing testimony that he threatened to kill
Harris.
A. Restoration of Felon Firearm Civil Rights
A. Restoration of Felon Firearm Civil Rights
Bartelho appeals his conviction under 18 U.S.C.
922(g)(1) (1994), which provides that it is unlawful for anyone
"who has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year . . . to possess . . .
any firearm." Bartelho's last conviction before the instant
crime was in 1990, when he served one year of a five-year prison
sentence. As noted in the facts, the police discovered a
semiautomatic rifle during their search of the Harris-Bartelho
apartment in close proximity to the place where they also
discovered defendant-appellant Bartelho, and at trial the
government presented Harris' taped pretrial statement that
Bartelho had threatened her while holding this weapon.
According to Bartelho, the district court erred in
denying his motion to dismiss, which contended (1) that the
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government was required to prove that his right to bear arms had
not been restored by the State of Rhode Island, and (2) that the
government failed to carry this purported burden. Bartelho
reiterates this argument on appeal. The argument depends on his
interpretation of 18 U.S.C. 921(a)(20) (1994), which defines
the term "crime punishable by imprisonment for a term exceeding
one year" in 922(g)(1) as follows:
What constitutes a conviction of such
a crime shall be determined in accordance
with the law of the jurisdiction in which
the proceedings were held. Any
conviction which has been expunged, or
set aside or for which a person has been
pardoned or has had civil rights restored
shall not be considered a conviction for
purposes of this chapter, unless such
pardon, expungement, or restoration of
civil rights expressly provides that the
person may not ship, transport, possess,
or receive firearms.
Bartelho argues that because Rhode Island has provided for
possible restoration of his civil right to carry a firearm, to
convict him under 922(g)(1), the government bears the burden of
showing that such restoration has not occurred. In short,
Bartelho proposes that we treat this showing as an element of the
offense.
We reject Bartelho's argument because we conclude that
a showing that the right to carry a firearm has not been restored
is not an element of a 922(g) violation. In United States v.
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Ramos, 961 F.2d 1003, 1006 (1st Cir. 1992), we read 922(a)(1)
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to require proof of three elements:
(1)that the accused is a convicted felon;
(2)who knowingly possessed a firearm;
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(3)which was connected with interstate
commerce.
Id. at 1006; see also United States v. Flower, 29 F.3d 530, 534
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(10th Cir. 1994) (citing United States v. Shunk, 881 F.2d 917,
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921 (10th Cir. 1989)); United States v. Sherbondy, 865 F.2d 996,
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1001-03 (9th Cir. 1988).
While neither 921(a)(20) nor 922(g)(1) explicitly
describes the role that the 921(a)(20) definition should play
or specifies who must initially raise or ultimately bear the
burden of proof on the issue of the predicate conviction's
continuing vitality, we conclude that 921(a)(20) is merely a
legal definition for the phrase "conviction for a term exceeding
one year" in 922(g)(1). Indeed, the title to 18 U.S.C. 921
is "Definitions." Furthermore, 921(a)(20) begins with the
words "[t]he term 'crime punishable by imprisonment for a term
exceeding one year' does not include," and is followed by two
exceptions. Thus, 921(a)(20) serves to narrow the class of
prior convictions down to a smaller class of convictions that may
serve as predicate convictions under 922(g)(1). To treat
921(a)(20) as a legal definition accords with the approaches
taken explicitly by two other circuits, see United States v.
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Jackson, 57 F.3d 1012, 1016 (11th Cir. 1995); Flower, 29 F.3d at
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534; United States v. Clark, 993 F.2d 402, 406 (4th Cir. 1993),
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and implicitly by several others, see United States v. Frushon,
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10 F.3d 663, 665-66 (9th Cir. 1993); Martin v. United States, 989
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F.2d 271, 273 (8th Cir.), cert. denied, 114 S. Ct. 475, 126
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L.Ed.2d 426 (1993); United States v. Cassidy, 889 F.2d 543, 545
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(6th Cir. 1990).
We are persuaded by the approach of United States v.
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Flower. The significance of 921(a)(20)'s definitional nature
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is that the trial judge bears the responsibility of determining
as a matter of law whether a prior conviction is admissible in a
922(g)(1) case. Flower, 29 F.3d at 535. Under Bartelho's
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proposed rule, the government would be required to refute every
possibility that criminal defendants have had their prior
convictions nullified or their civil rights restored. Rather
than require the government to show a negative proposition, we
reject Bartelho's interpretation. It is certainly much easier
for criminal defendants to raise the issue of whether their prior
convictions have been nullified or their civil rights otherwise
restored. Id.1
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1 We note in passing that the only circuit to have held that the
government must prove the "continuing validity" of a defendant's
previous conviction, United States v. Essick, 935 F.2d 28, 31
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(4th Cir. 1991), has recently clarified, and limited, their
previous conclusion in a manner instructive for the present case.
See United States v. Thomas, 52 F.3d 82, 85 (4th Cir. 1995); see
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also United States v. Clark, 993 F.2d 402, 406 (4th Cir. 1993).
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In Thomas, the court limited Essick's holding, by ruling that it
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did not apply to circumstances where the underlying state law
automatic restoration provision could not normally have taken
effect because the defendant had a prior conviction falling
within the statutorily prescribed period. Thomas, 52 F.3d at 85.
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Bartelho urges that we follow Essick and adopt its original
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holding. But Essick has been limited by the court that issued
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it, and in such a manner that would not benefit Bartelho.
Bartelho was most recently convicted only four years before the
instant offense; Rhode Island law requires that ten years must
pass after completion of a conviction before a defendant can
initiate the expungement process by which Bartelho's civil right
to carry a firearm could have been restored. See R.I. Gen. Laws
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12-1.3-2(a), 12-1.3-3(b)(1) (1956). Furthermore, while
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A claim of restoration of civil rights is in the nature
of an affirmative defense. As a result, once a prior felony
conviction and corresponding loss of civil rights is proven by
the government, as with any other factual condition, the
presumption is that that condition remains. See Jackson, 57 F.3d
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at 1016 ("[W]here affirmative defenses are created through
statutory exceptions, the ultimate burden of persuasion remains
with the prosecution, but the defendant has the burden of going
forward with sufficient evidence to raise the exception as an
issue.") (quoting United States v. Laroche, 723 F.2d 1541, 1543
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(11th Cir.), cert. denied, 467 U.S. 1245 (1984)). It is up to
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the defendant to raise the issue and produce evidence showing
that changed circumstances make the original condition
inapplicable. See Jackson, 57 F.3d at 1017; Flower, 29 F.3d at
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535. Defendant has not done so here.
Thus, upon de novo review, see, e.g., United States v.
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Three Juveniles, 61 F.3d 86, 87 (1st Cir. 1995) (reviewing de
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novo issues of interpretation of federal criminal statute), we
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find no error of law, since the government was not required to
show the validity of his past conviction in order to prove a
violation of 922(g)(1).
B. The Motion to Suppress
B. The Motion to Suppress
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Bartelho contends that the government was required to show that
he had not been pardoned, see R.I. Const. art. IX, 13, and
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thereby had his civil rights restored, he cites no authority for
this proposition other than Essick, which as noted above,
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actually involved an automatic restoration provision, not a
discretionary expungement or pardon. At any rate, we decline to
adopt the rule that Bartelho proposes.
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With respect to the motion to suppress, we review a
district court's findings of fact only for clear error. United
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States v. Mart nez-Molina, 64 F.3d 719, 726 (1st Cir. 1995).
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Questions of law, however, are subject to de novo review. Id.;
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United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).
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Prior to trial, Bartelho moved to suppress the evidence
garnered in both the July 2 warrantless search and the July 7
search, which he contended was tainted by the use of July 2-
obtained evidence to procure the warrant used. Based on the
facts presented at the evidentiary hearing, the magistrate judge
recommended that the district court deny Bartelho's suppression
motion, and the district court did so. The district court found
that (1) the officers had probable cause to believe that
contraband or evidence would be found inside, and (2) exigent
circumstances justified their entry without first obtaining a
warrant.
On appeal, Bartelho argues that the district court
erred by ruling that the July 2 search and subsequent seizures
were constitutionally protected. He contends that the evidence
found in the July 2 search should be excluded because the police
did not have probable cause to enter the apartment, and that
there were no "exigent circumstances" to excuse their lack of a
warrant. Furthermore, he argues that evidence gathered in the
July 7 search constitutes "fruit of the poisonous tree" and
should also be suppressed. See Wong Sun v. United States, 371
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U.S. 471, 487-88 (1962).
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First, we address Bartelho's contention that there was
insufficient probable cause to support the officers' entrance
into the Harris-Bartelho apartment. Probable cause to conduct a
search exists when "given all the circumstances, there is a fair
probability that contraband or evidence will be found in the
place described." United States v. Moore, 790 F.2d 13, 15 (1st
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Cir. 1986), cited in United States v. Wilson, 36 F.3d 205, 208
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(1st Cir. 1994). The determination of probable cause is to be
made by evaluating the totality of the circumstances facing the
police. See Illinois v. Gates, 462 U.S. 213, 238 (1983); United
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States v. Garc a, 983 F.2d 1160, 1167 (1st Cir. 1993).
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Bartelho argues that the police should not have been
allowed to rely on Daigle's statement that he was still in the
Harris-Bartelho apartment. He argues that because Daigle was in
her apartment together with small children, she could not have
known whether he had left via the back stairs, which were
detached from the building and enclosed. Furthermore, Bartelho
cites Harris' statement to the police that he was not in the
building as evidence that they did not have probable cause.
Bartelho's arguments are not persuasive. The district
court was not required to accept the contention that the
placement of the back staircase made it impossible for Daigle to
know if Bartelho had left. The officers testified that Daigle
was adamant that Bartelho was still there. Furthermore, the
officers were not required to take Harris' statement at face
value, especially given their domestic-abuse training. See,
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e.g., United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993)
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(weighing officers' experience in determination of probable
cause); see also United States v. Henry, 48 F.3d 1282, 1284-85
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(D.C. Cir. 1995) (upholding protective sweep despite the fact
that girlfriend told police her boyfriend had left). We conclude
that the evidence regarding the totality of the circumstances
supported the district court's conclusion that probable cause
existed for the police to believe Bartelho was still present in
the apartment, and we find no clear error. See United States v.
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Wilson, 36 F.3d 205, 209 (1st Cir. 1994) (reviewing district
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court's factual findings, especially witness credibility
determinations, for clear error); United States v. Baldacchino,
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762 F.2d 170, 175 (1st Cir. 1985).
Second, we address the critical limitation that "[e]ven
when supported by probable cause, warrantless entries into a
person's home are per se unreasonable unless justified by exigent
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circumstances." Moore, 790 F.2d at 15; see also Wilson, 36 F.3d
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at 208. Bartelho argues that sufficient evidence did not support
the district court's finding that exigent circumstances justified
the officers' warrantless search.
To determine whether there is an exigency sufficient to
justify a warrantless search and seizure, the test is "whether
there is such a compelling necessity for immediate action as will
not brook the delay of obtaining a warrant." Wilson, 36 F.3d
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205, 209 (1st Cir. 1994) (quoting United States v. Adams, 621
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F.2d 41, 44 (1st Cir. 1980)); see also Hegarty v. Somerset
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County, 53 F.3d 1367, 1374 (1st Cir. 1995). This necessarily
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fact-based inquiry, Wilson, 36 F.3d at 209, requires that we
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consider factors including the gravity of the underlying offense,
whether a delay would pose a threat to police or the public
safety, and whether there is a great likelihood that evidence
will be destroyed if the search is delayed until a warrant can be
obtained. Wilson, 36 F.3d at 209-10; Baldacchino, 762 F.2d at
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176.
Bartelho contends that the district court erred in
finding that exigent circumstances justified the officers'
warrantless search. In particular, he emphasizes that John
Perruzzi, the dispatcher, found the telephone line busy when he
called; that Harris had already exited the building when the
officers arrived; and that she provided no confirmation of an
assault, the existence of a firearm, or Bartelho's presence
inside the Harris-Bartelho apartment. According to Bartelho,
these facts rebut the district court's finding that requisite
exigent circumstances existed.
The facts that Bartelho cites do not compel a finding
that exigent circumstances did not exist. Bartelho tries to
argue that Perruzzi interrupted Harris in the middle of a phone
call, and so the police should have decided that all was well.
However, we must review evidence as a whole, including all
reasonable inferences, in the light most favorable to the
government. See, e.g., United States v. Robles, 45 F.3d 1, 2
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(1st Cir. 1994), cert. denied, 114 S. Ct. 731, 126 L.Ed.2d 694
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(1994). A busy signal would be consistent not only with the
possibility that Harris was making a phone call, but also with
the reasonable inference that Bartelho had taken the phone off
the hook. Moreover, as we have previously discussed, the police
were not required to take Harris' statements at face value, given
her demeanor, their training regarding domestic violence, and
Daigle's report.
We conclude that the district court did not err in
finding the requisite exigent circumstances. Several facts
address the reasons that this court has previously emphasized in
determining whether exigent circumstances exist. The police were
summoned by a caller who identified herself, lending credibility
to the report, and reported that a woman was being threatened by
a man with a loaded rifle, certainly a grave offense. See 17-A
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M.R.S.A. 1252(4) (1983 & Supp. 1994) (increasing penalties for
crimes if a "dangerous weapon" is used); see also L pez, 989 F.2d
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at 26 (considering presence of a firearm used in assault as a
factor in upholding warrantless search). Other facts suggest
that delay would have risked public safety. The scene was near a
busy highway that was on the route of a soon-to-begin Fourth of
July parade. Besides the parade, there were also other dwellings
nearby. Furthermore, Bartelho may well have known from Harris'
conversation with the dispatcher, or from looking outside, that
the police were waiting for him. By waiting, the police may have
risked an ambush. See United States v. L pez, 989 F.2d 24, 26
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(1st Cir. 1993) (noting that police are allowed to consider their
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own safety). Moreover, any normal delay in obtaining a warrant
might have been exacerbated by the holiday. Guided in our
inquiry by this court's previously adopted rubric, these facts
lead us to uphold the district court's finding of exigent
circumstances.
Because we uphold the district court's finding that the
July 2 search was legal, we do not consider Bartelho's argument
that the July 7 search warrant was tainted by illegality.
C. Jury Procedures
C. Jury Procedures
Bartelho also argues that the district court erred by
refusing to discharge the jury panel after another case's
indictment, involving the same model of firearm and an identical
witness, had already been read to the panel during voir dire and
jury selection. According to Bartelho, these facts may have led
the jury to associate him with the defendant who faced an
unrelated trial on a more serious charge. Bartelho contends that
he was thus denied a fair trial.
In empaneling a jury, a district court has a "duty to
determine the question of actual bias, and [] broad discretion in
its rulings on challenges therefor." Dennis v. United States,
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339 U.S. 162, 168 (1950); see also Kotler v. American Tobacco
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Co., 926 F.2d 1217, 1228 (1st Cir. 1990) (in absence of manifest
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juror prejudice, "we will not set aside a judge's actions in
empaneling a jury which [the judge] reasonably considers to be
suitable and impartial"). We review a trial judge's exercise of
discretion in empaneling a jury for "clear abuse." See, e.g.,
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United States v. McCarthy, 961 F.2d 972, 976 (1st Cir. 1992);
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United States v. Ploof, 464 F.2d 116, 118 n.4 (2d Cir. 1972).
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Although we have been unable to find any cases squarely
on point, prior cases in this circuit that address related issues
lead us to reject Bartelho's argument. In United States v.
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Carranza, 583 F.2d 25 (1st Cir. 1978), we adopted the following
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rule:
unless a specific showing of bias or
prejudice is made, the fact that a juror
sat in a prior case involving the same
government witnesses and the same type of
crime will not be grounds for
disqualification per se unless the
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defendant is charged with an offense
arising from the same transaction.
Id. at 28. Here, Bartelho has not made a specific showing of
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bias or prejudice. Furthermore, unlike in Carranza, his jurors
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neither heard the witnesses nor saw the evidence against the
other defendant. Additionally, Bartelho's charge (being a felon-
in-possession) and the other relevant defendant's charge (bank
robbery) were not the same type of crime. Finally, the
similarities between Bartelho's case and the one with which his
jury was empaneled are insufficient. See, e.g., United States v.
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Morales-D az, 925 F.2d 535, 537 (1st Cir. 1991) (rejecting
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argument of bias based on several jurors' prior service in a
different case involving another Hispanic drug defendant). Thus,
Bartelho has considerably less basis for an allegation of
prejudice than the defendant in Carranza, who also failed to
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persuade this court. We note in passing that this court has
previously emphasized the importance of caution under the
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Carranza rule in addressing challenges that threaten the judicial
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economy of multiple empanelment based on the negligible adverse
effects of this system when properly handled, as here. United
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States v. Maraj, 947 F.2d 520, 525 (1st Cir. 1991).
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For these reasons, we find that the district court did
not abuse its discretion by not discharging the panel.
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D. Harris' Testimony on Bartelho's Death Threats
D. Harris' Testimony on Bartelho's Death Threats
Lastly, Bartelho challenges the district court's
decision to allow Harris to testify that Bartelho had threatened
to kill her. On relevance grounds, Bartelho objected to the
government's questioning of Harris on redirect regarding whether
Bartelho had threatened to kill her, but the court allowed the
testimony. Citing Federal Rule of Evidence 403,2 Bartelho
argues that although the death threat may have been relevant as
to motive, such testimony was highly inflammatory and
prejudicial. He contends that this testimony thereby increased
the likelihood of a conviction based on emotion rather than
facts, thus denying him of a fair trial.
The balancing of probative value against prejudicial
impact under Rule 403 will not be disturbed on appeal as long as
the trial court "does not stray entirely beyond the pale."
United States v. Rodr guez-Estrada, 877 F.2d 153, 156 (1st Cir.
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1989) (quoting United States v. Tierney, 760 F.2d 382, 388 (1st
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Cir. 1985)). We review the trial court's ruling only for abuse
of discretion, see Tierney, 760 F.2d at 388, bearing in mind that
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the limitations of Rule 403 are to be "rarely invoked." United
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States v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1984).
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2 It is not entirely clear from the record that a Rule 403 issue
has been preserved for appeal. The government contends that
Bartelho tacitly waived a Rule 403 objection via his later
objections. Nonetheless, the ambiguity is irrelevant here, since
we do not consider the issue of waiver, as Bartelho's argument
fails on other grounds.
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We uphold the district court's decision to allow the
testimony. Harris was the only government witness who could
testify that Bartelho actually had physical possession of the
weapon. In fact, before trial she had so testified, and had been
recorded on tape. However, at trial she denied that Bartelho had
had a gun. Given that she was the best witness to one of the
elements of the crime of felon-in-possession, evidence that
Bartelho had previously threatened her life was highly relevant
to the jury's decision whether to credit her taped version of the
facts or her conflicting trial testimony. Furthermore, only the
fact that Harris told others about the threats was elicited;
there were no sensational details. Thus, we conclude that the
district court did not abuse its discretion in admitting the
evidence of the threats.
For the foregoing reasons, the judgment of the district
court is affirmed.
affirmed.
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