United States v. Wilkerson

411 F.3d 1, 67 Fed. R. Serv. 558, 2005 U.S. App. LEXIS 10702, 2005 WL 1355138
CourtCourt of Appeals for the First Circuit
DecidedJune 9, 2005
Docket02-1729
StatusPublished
Cited by38 cases

This text of 411 F.3d 1 (United States v. Wilkerson) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wilkerson, 411 F.3d 1, 67 Fed. R. Serv. 558, 2005 U.S. App. LEXIS 10702, 2005 WL 1355138 (1st Cir. 2005).

Opinion

GIBSON, Senior Circuit Judge.

Austin R. Wilkerson appeals his conviction for possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1), possessing more than five grams of cocaine base with intent to distribute under 21 U.S.C. § 841(a)(1), and carrying a firearm in connection with a drug trafficking offense under 18 U.S.C. § 924(c)(1). Wilkerson asserts that the district court erred by admitting prior consistent statements of a government witness in violation of Fed.R.Evid. 106 and the common law, permitting a government witness to interpret one of his post-arrest statements in violation of Fed.R.Evid. 701, and allowing the prosecutor to improperly vouch for his witnesses in summation and engage in other forms of prosecutorial misconduct. Wilkerson also challenges the sufficiency' of the evidence to establish a nexus between the firearm and interstate commerce, and he argues that his sentence should be remanded pursuant to United States v. Booker, — U.S.-, 125- S.Ct. 738, 160 L.Ed.2d 621 (2005). We hold that the district court erred in the admission of prior consistent statements, but this error was harmless. We remand to the district court for resentencing, and we affirm the district court on all other issues.

Boston police officers Tom Joyce and Ed Fleming stopped Wilkerson after he made an illegal U-turn. During the stop; the officers learned he was driving with a suspended license. Officer Joyce asked Wilkerson to step out of the vehicle, but Wilkerson refused. Joyce and Wilkerson struggled for the door while Officer Fleming called for back-up. Wilkerson then drove off and a chase ensued.

The car chase ended when Wilkerson abandoned his vehicle and took off on foot. From about thirty to forty feet away, the officers 1 saw Wilkerson holding his right side around his waist area. Joyce informed his partner, “Eddie, be careful, I think he has a gun.” Joyce then broadcast over the radio, “He’s reaching for his budge,” meaning that Wilkerson was reaching for the waistband area where he thought Wilkerson had a gun. The officers reported that Wilkerson continued to hold his right waist area while they followed him, but they did not actually see a gun.

The officers pursued Wilkerson onto Hartwell Street. Officer Joyce testified at trial that he was about sixty feet away when he saw Wilkerson turn into an alley between houses at 11 and 5 Hartwell on the north side of the street. Officer Fleming testified that he had just turned onto Hartwell when he saw the same thing. As Wilkerson turned into the alley, Joyce slowed down and peered down the drive *4 way on the south side of 11 Hartwell, between 11 and 15/17 Hartwell, to see if Wilkerson would come back the opposite way. He did not. When Joyce reached the alley, he saw Wilkerson climbing over a six- or seven-foot-high fence, no longer clutching his waist area. Joyce did not see anything in Wilkerson’s hands or belt as he lowered himself over the fence. Joyce did not attempt to scale the fence, but instead turned around and ran up the driveway. There Joyce saw Wilkerson running west through the backyards toward Cheney Street. Officers from another police unit arrested Wilkerson when they caught him running at a slow jog on Maple Street near Cheney.

After Wilkerson’s arrest, officers were ordered to retrace the route of the foot chase looking for anything he might have discarded. Another officer accompanied by Joyce found a gun and 12.55 grams of crack cocaine in the alley between 11 and 5 Hartwell. The items were described as clean and dry and lying on top of damp, dirty refuse. The gun was cocked, loaded, and ready to be fired. The key factual dispute at trial was whether Wilkerson ran up the alley where the gun and drugs were found, between 5 and 11 Hartwell, or whether he ran up the driveway between 11 and 15/17 Hartwell, which he would have had to pass before reaching the alley.

I.

Both of the evidentiary issues Wilkerson raises on appeal involve testimony about his flight path on Hartwell Street. We first address Federal Rule of Evidence 106 and the common law to determine when prior consistent statements may be used to rehabilitate a witness’s credibility.

Officer Fleming testified that he saw Wilkerson turn into the alley between 5 and 11 Hartwell. Defense counsel attempted to impeach Fleming’s credibility on this subject by eliciting testimony that (1) he did not describe the alley in the radio broadcasts he made while chasing Wilkerson, (2) he referred to the alley as a driveway in his police report, and (B) in state grand jury testimony he stated that Wilkerson ran between the second and third houses on Hartwell, which would be between 15/17 and 11 if counting from the direction in which they ran. Fleming was impeached on other subjects with his federal grand jury testimony, but none concerned Wilkerson’s flight path.

To rehabilitate his credibility, the government asked Officer Fleming on redirect examination, “[A]t any time prior to writing the report or in testifying in this case, did you ever indicate that [Wilkerson] ran up anyplace other than that area between 5 and 11 Hartwell?” He answered no. He was then asked, “[A]t any prior time, writing a report or in your prior testimony, did you indicate that the defendant ran up any location other than this location between 5 and 11 Hartwell?” Again he answered no. Finally he was asked, referring to his federal grand jury testimony, “[D]o you recall what you said in that testimony?” Fleming answered:

A. I testified to the fact that I saw the defendant run on to Hartwell Street and run up an alleyway between two homes on Hartwell Street.
Q. And were you shown two photographs in the grand jury?
A. I was.
Q. And what did you identify those photographs as being?
A. As the alleyway the defendant ran.

Defense counsel objected to this line of questioning. She argued that the testimony was hearsay and should not be allowed as non-hearsay prior consistent statements under Federal Rule of Evidence *5 801(d)(1)(B) because it was not offered to rebut a charge of recent fabrication. The district court agreed and ruled that Fleming’s testimony could not be admitted under Rule 801. Instead, the court allowed the testimony under Rule 106 \ the rule of completeness. Defense counsel maintained her objection. The district court, sua sponte, gave a limiting instruction directing the jury to consider the testimony only for the officer’s credibility and not for the truth of the statements.

We review the district court’s ruling for abuse of discretion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Aceituno
139 F.4th 55 (First Circuit, 2025)
Lech v. Von Goeler
92 F.4th 56 (First Circuit, 2024)
United States v. Chiu
36 F.4th 294 (First Circuit, 2022)
Simon v. Silva
D. Massachusetts, 2021
Taylor v. Medeiros
983 F.3d 566 (First Circuit, 2020)
United States v. Serrano-Delgado
375 F. Supp. 3d 157 (U.S. District Court, 2019)
State v. Walton
168 A.3d 652 (Connecticut Appellate Court, 2017)
United States v. Taylor
848 F.3d 476 (First Circuit, 2017)
United States v. Madsen
809 F.3d 712 (First Circuit, 2016)
United States v. Lyons
First Circuit, 2014
United States v. Lyons
740 F.3d 702 (D.C. Circuit, 2014)
United States v. Salley
651 F.3d 159 (First Circuit, 2011)
United States v. Ayewoh
627 F.3d 914 (First Circuit, 2010)
United States v. Rodriguez
667 F. Supp. 2d 223 (D. Massachusetts, 2009)
United States v. Combs
555 F.3d 60 (First Circuit, 2009)
Hearns v NHSP, Warden
D. New Hampshire, 2008
United States v. Major
293 F. App'x 160 (Third Circuit, 2008)
United States v. Salley
552 F. Supp. 2d 62 (D. Maine, 2008)
Wallace v. United States
526 F. Supp. 2d 277 (D. Rhode Island, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
411 F.3d 1, 67 Fed. R. Serv. 558, 2005 U.S. App. LEXIS 10702, 2005 WL 1355138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wilkerson-ca1-2005.