USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 95-2178
UNITED STATES,
Appellee,
v.
DWAYNE YOUNG,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Karl R.D. Suchecki with whom Jennifer Petersen and Petersen &
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Suchecki were on brief for appellant.
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Andrea Nervi Ward, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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January 23, 1997
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STAHL, Circuit Judge. In May 1995, a jury
STAHL, Circuit Judge.
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convicted defendant Dwayne Young on a single count of
unlawful possession of a firearm by a felon, 18 U.S.C.
922(g)(1). During trial, and after denying Young's motion to
suppress, the district court admitted the firearm and
ammunition into evidence. The district court also admitted a
so-called "turret tape," a recording of radio transmissions
between a police officer and his dispatcher, made during the
officer's foot pursuit of Young.1 Finally, the district
court allowed the jury to use a government-prepared
transcript as an aid in listening to the tape while it was
being played during trial. Finding no error, we affirm.
Background
Background
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On April 7, 1994, Officers James Fee and Robert
Twitchell of the Boston Police Department, while patrolling
the Roxbury section of Boston, received a radio broadcast
describing three individuals suspected of armed robbery.
Several blocks from the last reported location of the
suspects, the officers noticed a group of three men standing
together. Upon seeing the unmarked cruiser, the group
dispersed. One of the three, Young, walked in one direction
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1. The term "turret tape" refers to recordings of radio
broadcasts between Boston Police officers and dispatchers.
Specifically, "turret" derives from the fact that the
communications facility which records such transmissions
resides in aturret tower at the Boston Police headquarters.
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by himself while the other two departed together in another
direction.
The officers, noting that Young's short height and
black clothing appeared to match the description of one of
the robbery suspects, pulled their cruiser to the curb
alongside Young. From the passenger seat, Officer Twitchell
rolled down his window and announced "Boston Police, you got
a minute?" to which Young responded "Sure." Young then
"angled" toward the rear of the cruiser. As Young approached
the car, the officers noticed the handle of a handgun
protruding from his waistband. Officer Twitchell lunged at
Young through the window of the cruiser, made fleeting
contact with his jacket or belt, but failed to either grab
the gun or detain him. Young turned and ran from the
cruiser, with Twitchell, now on foot, in pursuit.
During the pursuit, Officer Twitchell saw Young
remove the gun from his waistband and throw it into the
basement stairwell of a building on Elm Street. Although
Young successfully eluded Twitchell, he was ultimately
apprehended by a back-up police officer who found him hiding
in a nearby garage. Officer Twitchell then returned to the
stairwell and recovered the gun. While these events were
unfolding, Officer Twitchell and other officers continuously
transmitted information to the dispatcher at the Boston
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Police headquarters. These transmissions comprise the turret
tape.
Prior to trial, Young moved to suppress the gun and
the turret tape. Young asserted that the police recovered
the gun through a violation of his Fourth Amendment rights,
and argued that the tape constituted inadmissible hearsay.
The district court denied Young's motion to suppress the gun,
but granted his motion with respect to the turret tape, with
the caveat that defense counsel's cross examination might
subsequently render it admissible. During trial and after
defense counsel's cross examination of Officer Twitchell, the
district court admitted the turret tape as a prior consistent
statement, and allowed the jury to use a transcript prepared
by the government, as an aid in listening to the turret tape.
Young appeals admission of the gun and tape, as well as use
of the transcript.
Discussion
Discussion
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A. Suppression of the Gun
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We employ a dual standard in reviewing motions to
suppress. We review the district court's findings of fact
for clear error. See United States v. Bartelho, 71 F.3d 436,
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441 (1st Cir. 1995). "A clear error exists only if, after
considering all of the evidence, we are left with a definite
and firm conviction that a mistake has been made." United
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States v. McCarthy, 77 F.3d 522, 529 (1st Cir.), cert.
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denied, 117 S. Ct. 479 (1996). Deference to the district
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court's findings of fact reflects our awareness that the
trial judge, who hears the testimony, observes the witnesses'
demeanor and evaluates the facts first hand, sits in the best
position to determine what actually happened. See United
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States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). By
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contrast, we review conclusions of law de novo and subject
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the trial court's constitutional conclusions to plenary
review. See id.; see also Ornelas v. United States, 116 S.
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Ct. 1657, 1663 (1996). Determinations of probable cause and
reasonable suspicion, relevant to the constitutionality of
law enforcement seizures and arrests under the Fourth
Amendment, present mixed questions of law and fact which we
review de novo. See Ornelas, 116 S. Ct. at 1663.
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Young argues that the district court erred by
concluding that recovery of the firearm did not occur through
conduct that violated his Fourth Amendment rights.
Specifically, Young contends that Officers Twitchell and Fee
lacked either the reasonable suspicion needed to stop him, or
the probable cause required for an arrest. We disagree.
Interaction between law enforcement officials and
citizens generally falls within three tiers of Fourth
Amendment analysis, depending on the level of police
intrusion into a person's privacy. The first or lowest tier
encompasses interaction of such minimally intrusive nature
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that it does not trigger the protections of the Fourth
Amendment. The Supreme Court has repeatedly emphasized that
not all personal intercourse between the police and citizens
rises to the level of a stop or seizure. See Florida v.
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Bostick, 501 U.S. 429, 434 (1991) (citing cases). Police may
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approach citizens in public spaces and ask them questions
without triggering the protections of the Fourth Amendment.
See id.; United States v. Manchester, 711 F.2d 458, 460 (1st
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Cir. 1983). Such police engagements need not find a basis in
any articulable suspicion. See Bostick, 501 U.S. at 435.
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Police conduct falls short of triggering Fourth Amendment
protections when, from the totality of the circumstances, we
determine that the subject of any police interaction would
have felt free to terminate the conversation and proceed
along his way. See Bostick, 501 U.S. at 439; United States
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v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994). The totality of the
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circumstances in this case establishes that any interaction
between the officers and Young prior to Officer Twitchell's
lunge falls well within the first tier of police-citizen
interaction, and therefore, fails to trigger the protections
of the Fourth Amendment. As they pulled alongside Young, the
officers identified themselves as Boston Police officers, and
asked "got a minute" to which Young replied "sure." The
district court credited the officers' testimony, and we
detect no clear error. We recently determined that conduct
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virtually identical to what occurred in this case did not
trigger the protections of the Fourth Amendment, and
concluded that in the absence of an officer's exertion of
physical force or an individual's submission to a show of
authority, no seizure occurs. See Sealey, 30 F.3d at 10
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(finding no Fourth Amendment seizure where police officers in
a cruiser approached defendant and yelled "Hey Steven, what's
up?") (citing California v. Hodari D., 499 U.S. 621 (1991)).
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We reiterate that conclusion with respect to the officers'
conduct toward Young prior to Officer Twitchell's lunge.
The remaining two tiers of Fourth Amendment
analysis comprise de facto arrests requiring probable cause,
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and lesser seizures generally known as investigative or Terry
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stops, which require a lesser reasonable suspicion. An
arrest occurs when an officer, acting on probable cause that
an individual has committed a crime, detains that individual
as a suspect. Probable cause exists when police officers,
relying on reasonably trustworthy facts and circumstances,
have information upon which a reasonably prudent person would
believe the suspect had committed or was committing a crime.
See United States v. Maguire, 918 F.2d 254, 258 (1st Cir.
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1990), cert. denied, Kavanagh v. United States, 501 U.S. 1234
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(1991). An investigative stop, also known as a Terry stop,
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see Terry v. Ohio, 392 U.S. 1 (1968), occurs when a police
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officer, acting on reasonable and articulable suspicion of
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criminal activity, briefly detains an individual to confirm
or dispel his suspicion. See McCarthy, 77 F.3d at 529;
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United States v. Schiavo, 29 F.3d 6, 8 (1st Cir. 1994).
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The government concedes, for purposes of this
appeal, that when Officer Twitchell made contact with Young,
he seized him for Fourth Amendment purposes. See, e.g.,
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Zapata, 18 F.3d at 977 (indicating that officer's touching of
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citizen during ongoing investigative stop establishes that
seizure occurred). In the absence of further argument on
this point, we proceed under the assumption that a seizure
occurred in this case. Young contends that the officers
either seized him without the requisite reasonable suspicion,
or arrested him without the requisite probable cause. We
conclude that to the extent the officers, through fleeting
physical contact, seized Young, they did so well within the
parameters of an investigative stop, and that the officers'
actions do not rise to the level of an arrest requiring
probable cause.
With respect to investigative stops, the relevant
question "is not whether the police had probable cause to
act, but instead whether the actions taken were reasonable
under the circumstances." McCarthy, 77 F.3d at 529. A
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familiar two- pronged test guides this inquiry. We first
must determine whether the officer's action was justified at
its inception, and, if so, whether the action taken was
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reasonably related in scope to the circumstances which
justified the interference. See id. at 530; United States v.
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Kimball, 25 F.3d 1, 6 (1st Cir. 1994). To satisfy the first
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prong, "'the police officer must be able to point to specific
and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that
intrusion.'" Kimball, 25 F.3d at 6 (quoting Terry, 392 U.S.
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at 21). To satisfy the second prong, we examine the totality
of the circumstances, see United States v. Walker, 924 F.2d
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1, 4 (1st Cir. 1991), bearing in mind that "an officer may []
conduct a patdown search where the officer is justified in
believing that the person is armed and dangerous to the
officer or others," Schiavo, 29 F.3d at 8. According to the
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district court, the following facts gave rise to reasonable
suspicion necessary to temporarily detain Young: (1) the
officers saw three individuals, one or more of whom appeared
to match the description of three armed robbers who had been
spotted in the area; (2) as they approached, one of the three
(Young) walked away from the group; (3) Officer Fee told
Officer Twitchell that he thought he recognized the person
walking away (Young) as a "bad guy;" (4) upon asking Young to
answer some questions, Young angled toward the rear of the
car instead of directly toward the passenger window; and (5)
as Young approached, both officers saw a gun in his
waistband. Careful review of the record from which the
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district court drew these findings does not leave us with a
"definite and firm conviction that a mistake has been made,"
McCarthy, 77 F.3d at 529, and those findings are not clearly
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erroneous. We are satisfied, moreover, that these facts in
their totality could give rise to the officers' reasonable
suspicion that Young had been involved in criminal activity.
We also conclude that Officer Twitchell's action,
the lunge at Young, was reasonably related in scope to the
circumstances. In agreeing with the district court we note
that sight of the gun gave rise to a significant concern for
the officers' and public's safety. See Walker, 924 F.2d at 4
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(officer's concern for own safety is of "paramount
importance" in assessing the appropriateness of the action
taken). To open the door of the cruiser and question Young
would have afforded Young an opportunity to use the gun, and
could have placed the officers and any bystanders in harm's
way.
To be sure, the officers did not determine whether
Young carried the firearm legally prior to attempting to
remove it or restrain him. As we have indicated, however,
"'[c]onduct innocent in the eyes of the untrained may carry
entirely different 'messages' to the experienced or trained
observer.'" United States v. Stanley, 915 F.2d 54, 56 (1st
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Cir. 1990) (quoting United States v. Bernard, 623 F.2d 551,
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560 (9th Cir. 1979)). "Weighing 'the limited violation of
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the individual's privacy against the opposing interests in
crime prevention and detection and in the police officer's
safety,'" United States v. Quinn, 815 F.2d 153, 156 (1st
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Cir. 1987), we conclude that Officer Twitchell's lunge at
Young, and the attendant physical contact, were reasonable in
scope and the circumstances justified the intrusion.
Young, however, argues that the physical contact
resulting from Officer Twitchell's lunge elevated the
encounter to a de facto arrest, which required probable
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cause. We have recently rejected the contention that every
incidence of physical contact, even de minimis, between a
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police officer and a citizen, constitutes an arrest requiring
probable case. See Zapata, 18 F.3d at 977 (indicating that
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police touching of individual does not necessarily elevate a
seizure to an arrest). Parsing whether any given seizure
constitutes an arrest or a lesser seizure, however, proves a
difficult task. See id. at 975 (explaining that no
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scientific formula exists to distinguish between
investigative stops and arrests). Police conduct will rise
to the level of an arrest when "'a reasonable man in the
suspect's position would have understood his situation,' in
the circumstances then obtaining, to be tantamount to being
under arrest." See id. (quoting Berkemer v. McCarty, 468
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U.S. 420, 442 (1984)).
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Factors that can elevate a non-arrest seizure to a
de facto arrest requiring probable cause include extending an
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investigative stop beyond the time necessary to confirm or
dispel reasonable suspicion, and physically blocking the
suspect's exit such that a reasonable person would not feel
free to leave. See Maguire, 918 F.2d at 259. The use of
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guns and the presence of more than one police officer,
however, do not necessarily convert an investigative stop
into an arrest. See id. Above all else, our cases in this
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area evince the fact specific nature of the inquiry. See,
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e.g., Kimball, 25 F.3d at 6 ("Whether police activity is
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reasonable in any particular context depends on the facts
which are unique to that incident.").
By lunging at and brushing his hand against Young,
Officer Twitchell did not impose "'restraints comparable to
those of a formal arrest.'" Quinn, 815 F.2d at 156 (quoting
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Berkemer, 468 U.S. at 441). The officers did not restrain
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Young's freedom of movement or succeed in detaining him even
briefly. Nor did the officers ever communicate verbally to
Young that he was under arrest or that they wanted to arrest
him. Under those circumstances, no reasonable person in
Young's position could have understood his situation "to be
tantamount to being under arrest." Zapata, 18 F.3d at 975.
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In light of police conduct we have determined to fall short
of de facto arrest, we affirm the district court's conclusion
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that Officer Twitchell's de minimis physical contact with
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Young did not effect an arrest. Cf. Zapata, 18 F.3d at 977
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(holding that de minimis physical contact did not convert
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investigative stop into arrest); Quinn, 815 F.2d at 156-57
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(holding that presence of several officers and the blocking
of defendant's car did not convert investigative stop into
arrest); United States v. Trullo, 809 F.2d 108, 113 (1st
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Cir.) (holding that police officer's use of drawn gun did not
convert investigative stop into arrest); cert. denied, 482
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U.S. 916 (1987).
B. Admission of the Turret Tape
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At trial, the district court admitted the turret
tape, a recording of the radio transmissions between Officer
Twitchell and his dispatcher during his pursuit of Young.
The district court initially declined to allow the tape, but
warned defense counsel that questioning on cross examination
of Officer Twitchell might render the tape admissible as a
prior consistent statement under Rule 801(d)(1)(B) of the
Federal Rules of Evidence. On appeal Young renews his
hearsay objection to the tape.2
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2. Young also asserts that the tape lacked proper
foundation, and cannot be characterized as either Officer
Twitchell's present sense impressions or excited utterances.
See Fed. R. Evid. 803(1) and (2). With respect to
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foundation, we note that Young failed to object to the tape
on foundation grounds at trial. We will review, therefore,
only for plain error, and conclude that the district court
admitted the tape on a sufficient foundation. United
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States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996). Prior
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We review the district court's evidentiary rulings
for abuse of discretion. See United States v. Alzanki, 54
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F.3d 994, 1008 (1st Cir. 1995), cert. denied, 116 S. Ct. 909
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(1996). Rule 801(d)(1)(B) provides in relevant part:
(d) Statements which are not hearsay. A
(d) Statements which are not hearsay.
statement is not hearsay if--
(1) Prior statement by
(1) Prior statement by
witness. The declarant
witness.
testifies at the trial or
hearing and is subject to
cross-examination concerning
the statement, and the
statement is . . . (B)
consistent with the declarant's
testimony and is offered to
rebut an express or implied
charge against the declarant of
recent fabrication or improper
influence or motive . . .
Fed. R. Evid. 801(d)(1)(B). For Rule 801(d)(1)(B) purposes,
we view the lower court's determination that a statement
rebuts an express or implied charge of recent fabrication as
a finding of fact, subject to reversal only if it proves
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to playing the tape, the government elicited Officer
Twitchell's testimony that he recognized the tape as a
recording of the broadcast, he had listened to the tape, he
recognized all of the voices on it, and that to the best of
his knowledge, the tape fairly and accurately reflected the
radio transmissions that occurred that evening. In the
absence of any foundation-based objection by defense counsel,
we cannot conclude that the district judge committed plain
error. With respect to Young's alternative arguments, we
conclude that the tape was properly admitted as a prior
consistent statement, and, therefore, we decline to consider
them.
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clearly erroneous. United States v. Piva, 870 F.2d 753, 758
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(1st Cir. 1989).
During direct examination of Officer Twitchell the
government sought to introduce the turret tape. The district
judge declined to allow the tape at that time, but indicated
that cross examination of Officer Twitchell could render the
tape admissible as a Rule 801(d)(1)(B) prior consistent
statement. During cross examination, Young's counsel elicited
testimony from Officer Twitchell that, prior to his recovery
of the firearm, he had never broadcast (a) that he and
Officer Fee saw a gun in Young's waistband, and (b) that he
had seen Young throw the handgun during the pursuit.
The government argued that through those questions
defense counsel implied that Officer Twitchell fabricated
seeing Young possess the gun, and moved on redirect to play
the turret tape as a prior statement consistent with his
testimony. Officer Twitchell testified that he saw Young
throw the gun, and on the tape, states the same observation.
The district court found that defense counsel, regardless of
her intent, had elicited testimony from which the jury could
infer that Officer Twitchell fabricated his testimony, and,
accordingly, admitted the tape under Rule 801(d)(1)(B). We
cannot conclude that the lower court abused its discretion.
Despite defense counsel's insistence that she did
not intend to imply fabrication, the district judge correctly
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ruled on the basis of the possible inferences the jury could
make as a result of the question. See Piva, 870 F.2d at 759
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(evaluating charge of fabrication on basis of what jury could
infer). Moreover, the district judge did not commit clear
error in finding that as a result of cross examination, a
jury could have concluded that Officer Twitchell neither saw
Young with a gun in his waistband, nor saw Young throw a gun.
Defense counsel's questioning implied fabrication by
highlighting that Officer Twitchell never broadcast that he
saw a gun in Young's waistband, and that he never broadcast
that he saw Young throw the gun until after Officer Twitchell
recovered the gun. In simple terms, a jury could have
inferred that if Officer Twitchell did not broadcast it, it
did not happen. His statement on the tape was consistent
with his testimony on direct examination that he had seen
Young throw the gun, and, therefore, was appropriately
admitted as a prior statement consistent with that testimony.
Young points out that nothing in the turret tape
directly contradicts the testimony elicited during cross
examination, that Officer Twitchell did not broadcast that he
saw Young throw a gun until after he recovered it. While we
do not dispute the truth of Young's assertion, we do not
ascribe similar significance to it. Nothing in the rule
requires the prior consistent statement to contradict any
testimony; the prior consistent statement must merely "be
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offered to rebut a charge or implied charge of fabrication."
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Fed. R. Evid. 801(d)(1)(B) (emphasis added). Having found,
without clearly erring, that defense counsel's questioning
could permit the jury to infer fabrication, the district
judge did not abuse his discretion in admitting the turret
tape as a Rule 801(d)(1)(B) prior consistent statement,
offered to rebut that implied charge.
The district judge allowed the government to play
the entire turret tape, "in order to set the context, in
order to understand the timing of what was going on." Young
contends that even if one of Officer Twitchell's statements
constitutes a prior consistent statement, the tape contains
additional statements of Officer Twitchell and others that do
not fall within that category, and, therefore, constitute
inadmissible hearsay.
At sidebar the district judge invited defense
counsel to offer redactions for his consideration prior to
playing the tape to the jury. Defense counsel failed to
offer specific, cognizable redactions, failed on the record
to object specifically to those portions of the tape she
found objectionable, and to explain to the district judge why
they did not constitute prior consistent statements.
Accordingly, Young may not now raise this argument on appeal.
See Piva, 870 F.2d at 759 (lack of specific objections at
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trial precludes party from raising specific issue on
appeal).3 In any event, having reviewed the contents of the
tape, we cannot conclude that the district judge abused his
discretion in admitting the entire tape and playing it to the
jury.4
C. Use of Transcripts of the Turret Tape
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The district judge also allowed the government to
provide a transcript to aid the jury in listening to the
tape. By way of background, we digress to explain how the
government prepared the transcript. The government first
sent the tape to a transcribing company, which transcribed
the tape to the best of its ability, given its unfamiliarity
with police jargon, names and codes, and the events that
transpired that particular evening. The government then
allowed each participant to review the transcript independent
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3. In Piva, the district judge admitted a prior statement
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under Rule 801(d)(1)(B) over counsel's general hearsay
objection. 870 F.2d at 759. Rather than point to a specific
reason why Rule 801(d)(1)(B) did not apply, counsel merely
made a hearsay objection and also argued improper
rehabilitation. See id. We held that counsel's lack of
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specificity precluded raising a specific challenge to Rule
801(d)(1)(B) applicability for the first time on appeal. See
___
id.
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4. With respect to the Turret tape, Young did not raise an
argument based on Tome v. United States, 116 S. Ct. 696
____ ______________
(1996) either at trial or now on appeal. We are not
unmindful, however, of the Supreme Court's recent admonition
that to be admissible, a prior consistent statement must have
been made before the alleged motive to fabricate arose. Id.
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at 700. In light of the nearly contemporaneous recovery of
the gun and Officer Twitchell's broadcast, we are satisfied
that this case does not present us with a Tome issue.
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of one another, in order to attempt to fill in those portions
the transcribing company could not determine. The government
then sent the revised transcript back to the transcribing
company, which then reviewed it while listening to the tape,
in order to validate the corrections.
The government informed the court of this procedure
at the hearing on Young's motion to suppress, when it
introduced the tape at trial, and before the jury by
specifically eliciting Officer Twitchell's testimony that he
assisted in the preparation of the final transcript. The
district judge offered defense counsel the opportunity to
replay the tape with an alternative transcript, and allowed
significant time and latitude on cross examination of Officer
Twitchell about the government's transcript and his role in
its preparation. Defense counsel, however, failed to utilize
any alternative transcript, or even the original draft of the
transcript, to point out potential inaccuracies or
inconsistencies, or simply to offer the jury an alternative
view of the contents of the tape.
In this circuit we have long approved the use of
properly authenticated transcripts of tape recordings for the
purpose of helping the jury listen to and understand the
recordings themselves. See United States v. Campbell, 874
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F.2d 838, 849 (1st Cir. 1989); United States v. Rengifo, 789
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F.2d 975, 980 (1st Cir. 1986) (citing cases). The district
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judge may even allow the jury to have the transcripts during
deliberations provided "the court makes clear that the tapes,
not the transcript constitute evidence in the case."
Rengifo, 789 F.2d at 980 (quoting United States v. Richman,
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600 F.2d 286, 295 (1st Cir. 1979)). Prior to trial, the
district judge should attempt to obtain a single stipulated
transcript; failing that, however, the court should allow
each party to introduce its own transcript of the recording
upon proper authentication. See id. at 983.
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In addition, when "a defendant has possession of
the transcript and tape prior to trial and raises no pretrial
objection, the district court is not obliged to interrupt the
trial to screen the transcript for accuracy prior to its use
by the jury." United States v. Font-Ramirez, 944 F.2d 42, 48
_____________ ____________
(1st Cir. 1991), cert. denied, 502 U.S. 1065 (1992).
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Instead, the district court may simply listen to the tape as
it is played for the jury, follow the transcript, and rule on
specific objections as they arise. See id. Should a
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defendant fail to offer specific objections during playback
of the tape, or offer an alternative transcript, the district
court does not abuse its discretion by allowing the jury to
use the transcript. See id.
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Our review of the record reveals no abuse of
discretion in the use of the government's transcript in this
case. At the outset we note that Young does not dispute
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proper authentication. Upon determining that the jury could
hear the tape with the aid of the disputed transcript, the
district judge gave the requisite instruction that the tape
and not the transcripts constituted the evidence the jury
should consider. The judge specifically instructed the jury
to disregard anything in the transcript that they could not
understand from the tape. See Campbell, 874 F.2d at 849
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(once judge instructs jury that tape and not transcript is
evidence, we review for abuse of discretion). The judge also
instructed the jury that he would allow defense counsel to
play the tape again with a different transcript, "to see if
you hear something different from what you might have thought
you heard when it was played with the other transcript before
you." The judge reiterated this instruction as part of his
final instructions while charging the jury.5
In addition to the events at trial, the record
reflects that defense counsel possessed copies of the
government's transcripts before trial, but raised no pretrial
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5. Young also asserts that by reviewing the transcript and
helping to fill in some of the portions the transcribing
company found unintelligible, Officer Twitchell had the
opportunity to create his own prior consistent statements
after a motive to fabricate arose. See Tome v. United
___ ____ ______
States, 115 S. Ct. 696, 700 (1995) (holding that prior
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consistent statement must have been made before motive to
fabricate arose in order to be admissible). We note only
that, as the district judge twice instructed the jury, the
evidence consisted of the tape and not the transcript. As
indicated, defense counsel had ample opportunity to present
an alternative transcript, or to impeach the transcript
through cross examination of Officer Twitchell.
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objections specific to either of them. While defense counsel
objected to the revised transcript at trial on the basis of
alleged inaccuracies, she neither made specific objections
during playback of the tape, nor chose to offer an
alternative transcript, even though the district judge
clearly indicated he would permit her to do so. On that
basis we cannot conclude that the district court abused its
discretion in allowing the jury to use the government's
transcript.6 See Font-Ramirez, 944 F.2d at 48 (holding that
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district court does not abuse discretion by allowing
transcript in absence of specific objections or alternative
transcript).
Finally, Young argues that the tape and transcript
had a prejudicial effect that far outweighed their probative
value under Rule 403 of the Federal Rules of Evidence. Young
failed to raise this objection at trial; we review the
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6. Young also challenges the admissibility of the tape and
use of the transcript on the basis of the Confrontation
Clause of the Sixth Amendment. See U.S. Const. amend. VI,
___
cl. 3. Young argues that the transcript contains statements
by the dispatcher, who did not appear at trial as a witness.
The Confrontation Clause exists to "advance a practical
concern for the accuracy of 'the truth-determining process .
. . by assuring that the trier of fact [has] a satisfactory
basis for evaluating the truth of the prior statement.'"
United States v. Panzardi-Lespier, 918 F.2d 313, 319 (1st
______________ ________________
Cir. 1990). On that basis, we have held that when an out-of-
court statement "falls within a firmly rooted exception to
the hearsay principle," its admission does not violate the
Confrontation Clause. See id. Having determined that the
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turret tape constitutes a prior consistent statement, and not
hearsay, we are satisfied that its admission did not violate
the Confrontation Clause.
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district court's decision, therefore, only for plain error.
See Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 516 (1st
___ _______ _____________________
Cir. 1996). We will disturb a district court's Rule 403
rulings, moreover, only in "'extraordinarily compelling
circumstances.'" United States v. Kayne, 90 F.3d 7, 12 (1st
_____________ _____
Cir. 1996), cert. denied, __ S. Ct. __, 1997 WL 2646 (Jan. 6,
_____ ______
1997) (quoting United States v. Montas, 41 F.3d 775, 783 (1st
_____________ ______
Cir. 1994), cert. denied, 115 S. Ct. 1986 (1995)). We see no
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such circumstances in this instance, and identify no plain
error in admission of the tape and use of the transcript.
Young's Rule 403 argument, raised for the first time on
appeal, thus fails.
Affirmed.
Affirmed
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