U.S. v. Walter, 04-1812.

• Decision Date: 11 January 2006
• Docket Number: No. 04-1812.,04-1812.
• Citation: 434 F.3d 30
• Parties: UNITED STATES of America, Appellee, v. Markeno WALTER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 30

434 F.3d 30

UNITED STATES of America, Appellee, v. Markeno WALTER, Defendant, Appellant.

No. 04-1812.

United States Court of Appeals, First Circuit.

Heard October 7, 2005.

Decided January 11, 2006.

COPYRIGHT MATERIAL OMITTED

David Shaughnessy, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, were on brief, for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and DiCLERICO, JR.,^* District Judge.

TORRUELLA, Circuit Judge.

On June 19, 2003, a grand jury sitting in the District of Massachusetts issued a five-count indictment against Markeno Walter a previously convicted felon. Walter was indicted with evidence from two controlled purchases of firearms arranged by the Western Massachusetts Gang Task Force ("Task Force"), a joint state-federal law enforcement initiative headed by the FBI. The Task Force had set up the purchases between Walter and a cooperating witness for the government named Terry Brown, who also happened to be Walter's cousin.

The first purchase took place on June 28, 2002 in the vicinity of Springfield, Massachusetts. On this occasion, Brown gave Walter $400 in cash and received in return a Lorcin .380 semi-automatic handgun that had its serial number removed, as well as ammunition. Brown was equipped with a recording device and a transmitter during this encounter, so the entire transaction was recorded on tape. The meeting between Brown and Walter was also videotaped by a member of the Task Force who was parked in a surveillance van nearby. The second controlled purchase took place on July 11, 2002 under similar circumstances. Brown, fitted with a recording device and a transmitter and under video surveillance, bought a .38 caliber revolver and ammunition from Walter for $400.

Using the confiscated weapons and ammunition, the audiotapes and videotapes of the two transactions, and the testimony of the various law enforcement officials involved in the controlled purchases, the government obtained its indictment in June 2003. The indictment stated that Walter unlawfully possessed firearms and ammunition that had traveled in interstate commerce, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 2, and that Walter also unlawfully possessed a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k).

In November 2003, a trial commenced in the district court during which Brown testified on behalf of the government against Walter. After three days of deliberation, a jury indicated that it could not reach a unanimous verdict, and a mistrial was declared. In February 2004, a second trial began. This time, the government did not call Brown as a witness, deciding instead to introduce the audiotapes made during the controlled purchases. Also, during the course of this second trial, Walter made a motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29 on the grounds of entrapment, which the district court denied. After deliberating, a jury found Walter guilty on all five counts of the indictment.

On May 27, 2004, the district court, using the standards set forth in the Armed Career Criminal Act ("ACCA") and the Sentencing Guidelines, sentenced Walter to a term of imprisonment of 188 months; to a term of five years of supervised release; and to a $500 special assessment. In this appeal, Walter contests the district court's admission of certain evidence, the court's denial of his motion for a judgment of acquittal, and his sentence. After careful consideration, we vacate Walter's sentence and remand for resentencing. On Walter's other claims, however, we affirm the decision of the district court.

I. Evidentiary issues

We review the district court's evidentiary rulings for abuse of discretion. Ramírez v. Debs Elías, 407 F.3d 444, 449 (1st Cir.2005). "Within that rubric, however, we consider de novo whether the strictures of the Confrontation Clause have been met." United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir.2005).

Walter's first claim is that he was deprived of his rights under the Confrontation Clause of the Sixth Amendment when the district court admitted into evidence Brown's taped statements. This argument fails, however, because the statements by Brown that were admitted had a nonhearsay purpose — namely, they were offered not for the truth of the matters asserted, but to provide context for the admissions of Walter. The Supreme Court has held in several instances that nonhearsay statements do not implicate the Confrontation Clause. See United States v. Inadi, 475 U.S. 387, 398 n. 11, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985).

That Brown's statements are to be characterized as "nonhearsay" in this instance is clear. In several cases, we have held that when statements are offered only to provide context and not for the truth of the matter asserted, those statements are not hearsay. See United States v. Catano, 65 F.3d 219, 225 (1st Cir.1995); United States v. McDowell, 918 F.2d 1004, 1007-08 (1st Cir.1990). At trial, the taped conversations that were used by the prosecution contained a number of admissions by Walter. Admissions of a party are admissible under Fed.R.Evid. 801(d)(2)(A). Brown's statements merely placed Walter's admissions in context. For example, Brown's question to Walter about whether someone was going to give the "thirty-eight" [i.e., a thirty-eight caliber revolver] to Walter was admitted to provide context to the following response by Walter: "Yeah, it's my gun, n* * * * *!¹ What are you talking about?" Similarly, Brown's question to Walter about whether Brown could get "both [guns] . . . for eight hundred" was admitted to provide context to the following response by Walter: "No, I really don't want to sell this one."

In McDowell, the defendant sought to bar the use of certain tapes containing proof that he had aided and abetted several other individuals in the commission of various drug trafficking crimes. After noting that the defendant's own statements could be used against him, we wrote that "a defendant, having made admissions, [cannot] keep from the jury other segments of the discussion reasonably required to place those admissions into context." McDowell, 918 F.2d at 1007. The other parts of the discussion "were properly admitted as reciprocal and integrated utterance(s) to put [the defendant's] statements into perspective and make them intelligible to the jury and recognizable as admissions." Id. at 1007 (internal citations and quotation marks omitted). Because such statements were introduced only to provide context, they were not to be considered hearsay. In the instant case, Brown's statements were also not being offered for the truth of the matters asserted but rather served as "reciprocal and integrated utterance(s)," reasonably required to place Walter's admissions into context and "make them intelligible to the jury." Id. (internal quotation marks omitted).

Our characterization of Brown's statements as "nonhearsay" is significant for another reason. It provides an answer to Walter's argument that the admission of Brown's statements is contrary to the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Court held that testimonial hearsay is not admissible under the Sixth Amendment unless the defendant had a prior opportunity for cross-examination and the declarant is unavailable. Walter argues that the district court erred in admitting the audiotapes containing statements by Brown because the government did not establish that Brown was unavailable. In fact, claims Walter, Brown was available, but the government consciously chose not to call him as a witness because he had engaged in egregious sexual misconduct during the time he was acting as a cooperating witness.

Walter's reliance on Crawford, however, is misplaced. The Supreme Court in that case went to great lengths to distinguish testimonial and nontestimonial hearsay. However, it also noted that the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 57 n. 9, 124 S.Ct. 1354. Crawford therefore does not call into question this Court's precedents holding that statements introduced solely to place a defendant's admissions into context are not hearsay, and as such, do not run afoul of the Confrontation Clause.

Walter's final challenge to the admissibility of this evidence is that the district court erred because it did not issue a limiting instruction advising the jury that it could use Brown's statements only to provide context and not for substantive purposes. See Fed.R.Evid. 105. Walter, however, never asked for such a limiting instruction. As a result, he is not entitled to argue here that the district court's failure to provide a limiting instruction constitutes reversible error. Our precedents have made this clear. See United States v. Murphy, 193 F.3d 1, 5 n. 2 (1st Cir.1999) ("Of course, where a statement is offered for non-hearsay uses, the defendant may be entitled to an instruction limiting its use . . . but only if he asks for it."); United States v. Cintolo, 818 F.2d 980, 999 (1st Cir.1987) ("Although the trial judge gave no limiting instruction . . . that is likely because the defendant never requested one. Having failed in this regard, [the defendant] cannot now be heard to complain of any alleged omission on the part of the district court in this wise."); Staniewicz v. Beecham, Inc., 687 F.2d 526, 531 (1st Cir.1982) ("[A]ppellant waived any objection to the lack of instruction by his failure to make a timely request for a limiting instruction."). We therefore hold that Walter was not deprived of his rights under the Confrontation Clause when the district court admitted into evidence Brown's taped statements.

II. Entr...