United States v. Norton

• Court: Court of Appeals for the First Circuit
• Decided: June 10, 1994
• Docket: 93-1408
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 93-1408

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  TIMOTHY P. NORTON,

                                 Defendant-Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Breyer,* Chief Judge,
                                         ___________

                        Torruella and Boudin, Circuit Judges.
                                              ______________

                                _____________________

               Frank  G.  Kelleher,  by  Appointment of  Court,  with  whom
               ___________________
          Timothy P. Norton pro se was on brief for appellant.
          _________________
               Michael  J. Pelgro,  Assistant United States  Attorney, with
               __________________
          whom  Donald K. Stern, United  States Attorney, was  on brief for
                _______________
          appellee.

____________________

____________________
                              
          ____________________

          *   Chief Judge Stephen Breyer heard oral argument in this matter
          but did not  participate in the drafting  or the issuance  of the
          panel's  opinion.   The remaining  two panelists  therefore issue
          this opinion pursuant to 28 U.S.C.   46(d).

TORRUELLA,  Circuit  Judge.     A  federal  grand  jury
                                ______________

          returned an  indictment charging Timothy  P. Norton with  being a

          felon  in possession of  a firearm  in violation  of 18  U.S.C.  

          922(g)(1).  Following  trial, the jury  found Norton guilty,  and

          the  district court then sentenced  him to 180  months in prison.

          Norton now  appeals his conviction, contending  that the district

          court abused its discretion  when it permitted the  government to

          cross-examine  Norton about  a  prior conviction  for carrying  a

          firearm.  We affirm.

                                        FACTS
                                        FACTS
                                        _____

                    The testimony and other evidence properly introduced at

          trial,  viewed  in  the  light  most  favorable  to the  verdict,

          established  the  following  facts.   United  States  v.  Rivera-
                                                ______________      _______

          Santiago,  872 F.2d 1073,  1078-79 (1st Cir.),  cert. denied, 492
          ________                                        ____________

          U.S. 910 (1989).

                    On  October 14,  1990,  Norton and  Kevin Johnson  were

          drinking in "The Bullpen Sports Bar and Grill" ("The Bullpen") in

          Somerville, Massachusetts.   The  two men  became involved  in an

          altercation with one of  the owners, James Hough, and  a manager,

          Leo  Kelley.  Norton and  Johnson were ejected  from The Bullpen.

          The Somerville police then arrived at the scene.

                    After The Bullpen  had closed for the night, Norton and

          Johnson returned to the premises.  What happened when the two men

          returned  was   disputed  at  trial.    Because  of  the  earlier

          disturbance, Police  Officers  Thomas Silveira  and Neil  Brennan

          were assigned to patrol the vicinity around The Bullpen.  Officer

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Silveira  observed  a  vehicle,   later  identified  as  Norton's

          Cadillac  Seville, stopped in the street in front of The Bullpen.

          Officer  Silveira observed Norton pointing what  appeared to be a

          pistol toward the front  door of The Bullpen.   He testified that

          he then saw a flash from the  weapon.   Norton then got into  the

          Cadillac.   Officer Silveira  then observed  Johnson  run to  the

          front of The Bullpen, he saw a large flash and explosion, and saw

          Johnson get back into Norton's Cadillac.

                    Somerville Police  Detective Ernest Nadile  had earlier

          returned to The Bullpen to protect the employees who remained and

          were present  after the bar  closed.  Detective  Nadile testified

          that he  heard a shot  ring out.   He then  "hit the floor,"  and

          heard  another  shot  approximately  three  seconds  later.    As

          Norton's Cadillac sped away, Officer Silveira and Officer Brennan

          pursued  the  vehicle.    During  the  pursuit,  Officer  Brennan

          observed the driver  of the Cadillac throw what appeared  to be a

          gun out  the driver's side  window, and  he heard the  gun hit  a

          parked car and slide across the pavement.

                    Other officers  subsequently joined in  the chase,  and

          they eventually  stopped the  Cadillac.   A struggle  then ensued

          between  Officer Brennan and  Norton.   Officer Brennan testified

          that  he heard Norton repeatedly utter that  he had not shot at a

          cop.  The police officers arrested both Norton and Johnson.

                    Officer  Brennan  then went  back  to  the location  in

          Somerville where he had seen Norton throw an  object, and found a

          Colt Combat  Commander .45  caliber semi-automatic pistol  in the

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street.

                    Johnson testified on behalf of  the defense.  He stated

          that after being ejected from The Bullpen, he  and Norton went to

          the Jumbo  Pub, another bar,  and then to  the Moose Club,  where

          they drank for the next few  hours.  Johnson testified that while

          at  the  Moose  Club,  a  friend  gave  him  an   "M-80,"  a  big

          firecracker.   After leaving  the Moose Club,  Johnson discovered

          that he  had lost his  wallet and  Norton drove him  back to  The

          Bullpen to look  for the missing  item.  Johnson  then found  his

          wallet  against the  curb  of the  street.   While  returning  to

          Norton's Cadillac, Johnson took out the "M-80," lit it, and threw

          it in the general vicinity of The Bullpen's front door.   Johnson

          testified that he  did not see a  gun that night and  that he did

          not know anything about a gun.

                    Norton  also chose to testify on his own behalf.  Prior

          to Norton's testimony, the  court conducted a voir dire  with him

          concerning  his decision.   During  the  course of  the colloquy,

          Norton made reference to his  prior criminal record and discussed

          the possibility that the  government might try to impeach  him by

          means  of his prior convictions.   Prompted by  the exchange, the

          district  court asked  the  government to  review Norton's  prior

          criminal record so that the court could make an advance ruling on

          the  admissibility of  Norton's prior  convictions under  Fed. R.

          Evid. 609.   The government  then advised the  district court  of

          numerous prior convictions extending back to 1954.  Upon learning

          that  the government had  not provided advance  written notice to

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the defense of  its intent to use these  convictions at trial, as

          required  by Fed.  R.  Evid. 609(b),  the  court ruled  that  the

          government would  not  be  allowed  to impeach  Norton  with  any

          convictions that  were greater  than ten  years old, including  a

          1963 conviction for unlawfully carrying a firearm.

                    The court then engaged  in a balancing process to  rule

          on the admissibility of  the more recent convictions.   The court

          ruled that the  government could inquire about a  1991 conviction

          for malicious destruction  of property and a  1985 conviction for

          possession of  cocaine with  intent  to distribute,  but that  it

          could not inquire about other convictions.

                    After  the  court's  advance  ruling,  Norton  took the

          stand, and essentially testified  to the same chain of  events to

          which  Johnson had testified.  Norton testified that he never saw

          a gun that  night, that he never possessed a  gun that night, and

          that he never threw a gun out of the driver's side  window of his

          Cadillac.

                    During  direct  examination,  the   following  exchange

          occurred between Norton and his counsel:

                    Q.  Now,  at  some point  did you  have  a gun  in your
                        possession during the chase?

                    A.  I never had a gun in my life in that car.  Or on my
                        possession or anywhere.

          During cross-examination, a sidebar  conference took place, where

          the government requested that  it be able to present  evidence of

          Norton's  1963  conviction  for  unlawfully  carrying a  firearm,

          because Norton had stated on direct examination that he never had

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a gun in all his life.  The following exchange occurred:

                    Mr. Pelgro:  ".  .  .  in  connection  with  the  prior
                                 convictions that are  over ten years,  you
                                 ruled, of course, they were not admissible
                                 under  Rule  609.   The  defendant  in the
                                 course  of  his  direct examination,  when
                                 asked a  question about  whether he  had a
                                 gun that night, stated  he never had a gun
                                 in  all my  life.   I've got  a conviction
                                 from 1963  of him carrying a  revolver.  I
                                 think it's fair game on his credibility to
                                 ask him about that.

                    The Court:   I think that's so.

                    Mr. Kelleher:  I would object  to it.  I think that was
          an
                                 emotional response, I  never had a gun  in
                                 all my life.

                    The Court:   Well, it was wrong.

          With  the court's  permission,  the government  proceeded to  ask

          Norton about his 1963  firearm conviction.  On cross-examination,

          the following exchange took place:

                    Q.  Now,  sir, I  believe  you testified  on Friday  in
                        response to your lawyer's  questions that you never
                        had a gun in your entire life; is that correct?

                    A.  I didn't say  I never had a gun  in my entire life,
                        sir.

                    Q.  Well, when your lawyer  asked you if you had  a gun
                        that night, didn't you  say I never had one  in all
                        my life?

                    A.  I never had one in my hand in all my life, yes.

                    Q.  You never had one in your hand?

                    A.  No, sir, I didn't.

                    Q.  It  is true,  is it  not, that you  were previously
                        convicted of unlawfully carrying a  revolver; isn't
                        that correct?

                    A.  I pled guilty to that.  I was involved with another
                        gentleman, sir.  You're referring to 1963?

                                         -6-

Q.  Yes.

                    A.  I  was a young  man then.   I was a  very young man
                        then.

                    Q.  So you were mistaken when you stated that you never
                        had one in all your life?

                    A.  It wasn't in  my hand.  It was one  revolver and it
                        never was in my hand.

                    Q.  You  did  plead   guilty,  though  to  carrying   a
                        revolver, didn't you?

                    A.  That  was the  cumulation of  the  charge.   I pled
                        guilty and received three to five years.

          The jury subsequently found Norton guilty.  This appeal followed.

                                       ANALYSIS
                                       ANALYSIS
                                       ________

                    A.  Standard of Review
                    A.  Standard of Review

                    The district  court is vested with  broad discretionary

          power  to  admit  or exclude  evidence.    See  United States  v.
                                                     ___  _____________

          Innamorati,  996 F.2d 456, 478  (1st Cir.), cert.  denied, 114 S.
          __________                                  _____________

          Ct. 409 (1993); United States v.  George, 752 F.2d 749, 756  (1st
                          _____________     ______

          Cir. 1985).    A  district court has  considerable discretion  to

          discern the relevancy of evidence.  United States v. Tierney, 760
                                              _____________    _______

          F.2d  382, 387  (1st Cir.),  cert. denied,  474 U.S.  843 (1985).
                                       ____________

          Similarly, the court has great latitude to gauge the relevance of

          the evidence against the  unfair prejudice which may  result from

          its admission.   Id.; United States v. Griffin, 818  F.2d 97, 101
                           __   _____________    _______

          (1st Cir.), cert. denied, 484 U.S. 844 (1987).   "[O]nly rarely -
                      ____________

          and in  extraordinarily compelling circumstances -  will we, from

          the  vista of a cold appellate record, reverse a district court's

          on-the-spot   judgment  concerning   the  relative   weighing  of

          probative value and unfair effect."  United States v. De La Cruz,
                                               _____________    __________

                                         -7-

902 F.2d 121,  124 (1st  Cir. 1990) (quoting  Freeman v.  Package
                                                        _______     _______

          Machinery Co., 865 F.2d 1331, 1340 (1st Cir. 1988)).
          _____________

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B.  Governing Evidentiary Principles
                    B.  Governing Evidentiary Principles

                    Norton contends  that his  1963 firearm  conviction was

          not  admissible under  Fed.  R. Evid.  609,  and that  the  court

          violated a number of  requirements of this rule when  it admitted

          the  conviction.  Rule 609,  however, is not  controlling in this

          context.    Rule 609  is an  impeachment  rule which  governs the

          admissibility of  evidence of  certain criminal convictions  of a

          witness when offered to impeach that witness by proving character

          for  untruthfulness.   Fed.  R.  Evid.  609 advisory  committee's

          notes;  28  Wright and  Gold, Federal Practice  and Procedure,   
                                        _______________________________

          6133 at p. 204; see, e.g., United States v. Brown, 603 F.2d 1022,
                          ___  ____  _____________    _____

          1027-29  (1st Cir. 1979); United  States v. Oakes,  565 F.2d 170,
                                    ______________    _____

          173  (1st Cir.  1977).   The premise  behind the  rule is  that a

          witness who has previously been convicted of a felony, or a crime

          involving  dishonesty or a false statement, is more likely to lie

          than is a person with a spotless past.  Federal  Practice,   6132
                                                  _________________

          at pp.  190-94.  Thus,  Rule 609 evidence  is admissible  for the

          purpose of attacking credibility generally, but the rule does not

          address  the admissibility  of  prior convictions  when they  are

          offered  for  another purpose.   Id.  at  pp. 205-06;  see United
                                           __                    ___ ______

          States  v. Babbitt, 683 F.2d 21, 25 (1st Cir. 1982) (introduction
          ______     _______

          of  evidence of  a prior  conviction did  not implicate  Rule 609

          where  defendant   denied  having  a  police   record  on  direct

          examination  and  prosecutor   introduced  conviction  on  cross-

          examination to bring  to light  actual facts);  United States  v.
                                                          _____________

          L pez, 979 F.2d 1024,  1033 (5th Cir. 1992) (neither  Rule 608 or
          _____

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609  applies  "in  determining   the  admissibility  of  relevant

          evidence introduced to  contradict a witness's testimony  as to a

          material issue"), cert. denied sub nom. Ram rez v. United States,
                            _____________________ _______    _____________

          113  S. Ct. 2349 (1993);  cf.  United States v. Barrett, 766 F.2d
                                    ___  _____________    _______

          609, 619  (1st  Cir.) (where  a defendant  introduces, and  makes

          material, specific  conduct in his direct  testimony, proving the

          falsity  of such testimony is  a fair target  for the prosecution

          and  Rule  608 is  not implicated),  cert.  denied, 474  U.S. 923
                                               _____________

          (1985).2

                    Instead, the  general strictures of Fed.  R. Evid. 4023

          and  4034 were  invoked when  the government  proffered the  1963

          firearm  conviction   to  contradict  material   false  testimony

          injected  into the trial by Norton himself.   See L pez, 979 F.2d
                                                        ___ _____

          at  1034.  Prior convictions  are admissible under  Rules 402 and
                              
          ____________________

          2   At  trial,  the  government  argued  that  the  1963  firearm
          conviction was  relevant to  shed light on  Norton's credibility.
          The  record is  somewhat unclear  as to  the precise  grounds the
          court  ultimately  used to  justify  its  decision  to admit  the
          conviction.  Even  if, however, the  court admitted the  evidence
          under Rule 609, we can still affirm its ruling if the evidence is
          admissible under another rule.  A district court's reliance on an
          improper  ground for  admitting the evidence  will not  amount to
          harmful error if other valid grounds for admission exist, because
          such  a  situation  does  not affect  a  defendant's  substantial
          rights.  L pez, 979 F.2d at 1033.
                   _____

          3   Fed.  R. Evid.  402 provides  in pertinent  part that  "[a]ll
          relevant evidence  is admissible  .  . .  "   Fed.  R. Evid.  401
          defines  "[r]elevant evidence"  as  ". .  .  evidence having  any
          tendency to make the existence of any fact that is of consequence
          to the determination of the action more probable or less probable
          than it would be without the evidence."

          4   Fed.  R. Evid.  403 provides  in pertinent  part: "[a]lthough
          relevant,  evidence may  be  excluded if  its probative  value is
          substantially outweighed by the danger of unfair prejudice 
          . . . . "

                                         -10-

403  to contradict specific testimony, as long as the evidence is

          relevant and its probative  value is not substantially outweighed

          by the danger of unfair prejudice.   L pez, 979 F.2d at 1034; cf.
                                               _____                    ___

          United  States v.  Beauchamp,  986 F.2d  1,  3 (1st  Cir.  1993).
          ______________     _________

          Evidence  which tends to  disprove a witness's  testimony about a

          material issue in the case is relevant.  L pez, 979 F.2d at 1034.
                                                   _____

                    In  the  present  case,   Norton's  possession  of  the

          firearm was  the sole contested issue  at trial.5  We  agree with

          the  government that the district court could have found that the

          evidence  of Norton's  prior firearm  conviction was  relevant to

          this material issue.   See Babbitt,  683 F.2d  at 25; L pez,  979
                                 ___ _______                    _____

          F.2d at 1034.  Norton testified on direct examination that he did

          not  have  a  firearm on  the  night  in question.    Norton then

          attempted  to add  credence to  this claim  by testifying  to the

          effect  that he had never possessed a gun in his life.  If Norton

          had never possessed a gun prior to the night in  question, it was

          more likely  than it would  be without this evidence  that he did

          not possess a gun on  the night in question.   Once Norton denied

          that he had ever possessed a gun, he opened the door to the issue

          of his prior or present firearm possession.  The fact that Norton

          had been  previously convicted of  carrying a firearm  was highly

____________________

          5   Under 18 U.S.C.   922(g)(1), the Government had to prove that
          1) Norton had previously been convicted  of an offense punishable
          by imprisonment exceeding one year; and 2) he knowingly possessed
          a  firearm in or affecting commerce.  United States v. Wight, 968
                                                _____________    _____
          F.2d 1393, 1397 (1st Cir. 1992).

                                         -11-

relevant to contradict his specific misleading assertion.6

                    As with most evidentiary  questions, the court was then

          required to  consider the unfair  prejudice that would  stem from

          admitting this  prior conviction.   As  a primary matter,  Norton

          introduced  the issue of  whether he  had previously  possessed a

          firearm into the trial.  Norton  cannot be heard to claim that he

          was "unfairly prejudiced"  by the fact  that the government  then

          established, through the 1963 conviction, that he lied, or at the

          least,  misled  the jury,  when he  testified  that he  had never

          possessed a  firearm.   See, e.g.,  Oakes, 565  F.2d  at 172  (an
                                  ___  ____   _____

          accused  should  not  "be  heard to  complain  of  any  resulting

          prejudice created by his own actions").  Moreover,  the prejudice

          to  Norton  which  resulted  from admitting  the  conviction  was

          relatively  slight.  While the evidence did tend to demonstrate a

          propensity by Norton to  possess firearms, here, that effect  was

          minimal.  The conviction was 29 years old, and, as Norton pointed

          out  on  cross-examination, his  transgression had  occurred many

          years  ago, when  he was  a  "very young  man."   The court  also

          limited any  possible prejudicial spill-over of  such evidence by

          repeatedly  instructing the  jury as  to the  limited purpose  of

____________________

          6  Norton  claims that the  court had  previously ruled that  the
          1963 firearm  conviction was generally not  admissible under Fed.
          R.  Evid. 609,  and that  the  court could  not then  change this
          ruling during the course of Norton's testimony.  Advance  rulings
          on  the  admissibility  of  prior   convictions  for  impeachment
          purposes, however,  may always  be altered  as the  case unfolds.
          United States v.  Nivica, 887  F.2d 1110, 1116  (1st Cir.  1989),
          _____________     ______
          cert. denied, 494 U.S. 1005 (1990);  Oakes, 565 F.2d at 172.  The
          ____________                         _____
          court's  advance ruling was not  a license for  Norton to proffer
          false or misleading testimony.

                                         -12-

prior  conviction  evidence.7   Under  these  circumstances,  the

          court  properly concluded  that the  probative value  of Norton's

          1963 firearm conviction outweighed any unfair prejudice to him.

                    The  district court's decision  to admit Norton's prior

          firearm conviction was free from error.  Therefore, we affirm.
                                                                 ______

____________________

          7   When  the  government asked  Norton  about his  1985  cocaine
          conviction, the court instructed the jury as follows:

                      . .  .   And there's another  thing here,
                      because  this is the  person accused.  If
                      you were to draw  from the fact that back
                      then he was convicted of this drug  crime
                      that he's  a bad person and  therefore he
                      must  have done  this  crime, that  would
                      violate your oath.   It's not fair,  it's
                      not what you're  asked here.   You're    
                      asked whether the government  proves this
                      crime, the  reason  that we're  all  here
                      together in court, felon in possession of
                      a firearm, whether they proved this crime
                      beyond a reasonable doubt.

                        You  may  consider  that crime  on  the
                      issue  of whether he's  a felon,  and you
                      may consider  that crime on the  issue of
                      whether you  believe his testimony.   But
                      don't  just come  to the  conclusion he's
                      some sort  of bad person so  he must have
                      done this.  That would  violate your oath
                      as jurors.

             The court  repeated the essence  of this instruction  when the
          government asked  Norton about his 1991  conviction for malicious
          destruction of property.

                                         -13-