U.S. v. Cadieux

• Decision Date: 21 August 2007
• Docket Number: No. 05-2567.,05-2567.
• Citation: 500 F.3d 37
• Parties: UNITED STATES of America, Appellee, v. David CADIEUX, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

500 F.3d 37

UNITED STATES of America, Appellee, v. David CADIEUX, Defendant, Appellant.

No. 05-2567.

United States Court of Appeals, First Circuit.

Heard March 7, 2007.

Decided August 21, 2007.

Jane Elizabeth Lee, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before HOWARD, Circuit Judge, CAMPBELL, Senior Circuit Judge, and SARIS,^* District Judge.

SARIS, District Judge.

Appellant David Cadieux was convicted as a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced to 188 months under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). On appeal, he contends that (1) the trial court's admission of a recording of a 911 call made by a declarant whom Appellant did not have the opportunity to cross-examine violated the Confrontation Clause; and (2) the trial court improperly classified Appellant's 1989 conviction for indecent assault and battery on a child under fourteen, Mass. Gen. Laws ch. 265, § 13B (1989), as a violent felony under the ACCA because his conviction was for a state-law crime that covered both violent and non-violent conduct.

I. Background¹

A. The 911 Call for Help

On May 15, 2003, the police responded to a 911 call reporting that a drunken Cadieux was brandishing a shotgun during an argument with his long-time girlfriend, Theresa Nye, at his home in rural Maine. A convicted felon since the 1980s, Cadieux lived on the property with Nye and her children. When Nye returned home from work around 9 p.m., she found Cadieux in the barn drunk and angry, apparently having been kicked by a horse. They argued, and eventually Nye asked Cadieux to leave. During this exchange, Cadieux picked up a shotgun lying nearby in the barn. At this time, Jolene Nye, Theresa's twenty-one-year-old daughter, arrived home with her boyfriend and child. Theresa told Jolene not to get involved in the argument and to go into the house because there were guns in the barn. Hysterical, Jolene entered the house and called the police. As she spoke with the dispatcher, her mother tried to persuade her to hang up the phone.

Jolene had the following exchange with the dispatcher:

Police: 911

[Jolene]: Um, I have, I don't care Mom, he's

Police: Hi, hello

[Jolene]: Hello

Police: Talk with me, try to calm down, what's going on? Hi

[Jolene]: Um

Police: You're on the Maxwell Road in Temple

[Jolene]: Yup

Police: What's the problem? What's going on, do you want a police officer?

[Jolene]: Um, yeah, because

Police: Yup, Maxwell Road, Temple

Mom: No

[Jolene]: Mom, yes, think about your kids right now Mom

Police: What's your Mom's name?

[Jolene]: I don't care if there's no ammunition Mom he just grabbed the gun cuz he's shitfaced.

Police: Hey,

[Jolene]: Uh-huh

Police: Who grabbed the gun?

[Jolene]: (breathing)

Police: Who's got a gun you gotta tell me now.

[Jolene]: It's not loaded it was out in the barn

Police: Who?

[Jolene]: Hello?

Police: Hi, how old is he?

[Jolene]: Um

Police: Who's in the barn with the gun?

[Jolene]: My mom's

Police: boyfriend?

[Jolene]: Yeah

Police: Franklin Unit 76, 1032

[Jolene]: We've never had a problem like this

Police: It's gonna be Maxwell Road, 25 Maxwell Road, a male subject; the female caller does not believe there are any bullets in the gun

[Jolene]: No there is, there isn't any, he's drunk. I just said that Mom

Police:—start toward Temple (background police noise) Temple, Unit 8 could you head for 25 Max-well Road Temple, thank you.

[Jolene]: I'm not sure I think he might have left. But there was there was (talking to Mom in background)

Police: (Background police noise) Is it the first house on the right? Is it the first house on the right?

[Jolene]: Huh?

Police: Are you the first house on the right?

[Jolene]: I think the second, my mom wants to talk to you.

She then handed the phone to her mother. At some point, Cadieux fled into the nearby woods.

When the police arrived, they set up a tactical team around the perimeter of the house and searched for Cadieux. He was discovered hours later, around midnight, as he attempted to enter the barn through a locked rear door. The police found the shotgun, which was missing a clip, and an antique rifle² stuffed into a crawlspace underneath the barn's foundation. The police also found a shotgun shell in the barn near where the horses were kept. A search the next day revealed the missing shotgun clip in a vest hanging in the barn close to many of Cadieux's possessions.

Cadieux was arrested for being a felon in possession of a firearm. When he was taken into custody, Cadieux insisted that he had a firearm identification card issued in Massachusetts and could have guns on his property if he wanted.

B. The Failed Plea Agreement and Trial

On July 19, 2004, Cadieux entered into a plea agreement under Fed.R.Crim.P. 11(c)(1)(c). The agreement specified a base offense level 14 and criminal history category II, which resulted in an initial guidelines range of 12-18 months. At the change-of-plea hearing on September 2, 2004, probation informed the court that Cadieux was subject to a sentencing enhancement as an armed career criminal because Cadieux had three prior violent felony convictions. See 18 U.S.C. § 924(e)(1). Among other things, he argued that his 1989 conviction for indecent assault and battery on a minor did not qualify as a third strike because the 1989 statute captured consensual sexual touching that could not be deemed "violent" within the meaning of the ACCA. The presentence report, to which Cadieux did not object, stated that Cadieux was born on September 20, 1959. In a well-reasoned opinion, the court below found that "a comparison between the [1989] indictment and the elements of the statute as illuminated by applicable case law" established that Cadieux, as an adult, had committed an indecent sexual touching of a child which, under our precedent, was a violent felony under the ACCA. See United States v. Cadieux, 350 F.Supp.2d 275, 285 (D.Me.2004).³ The court permitted Cadieux to withdraw his plea, and the case went to trial.

At trial, over Cadieux's objection, the district court allowed the government to introduce a recording of Jolene's statements to the 911 dispatcher. Jolene did not testify. The court concluded that the recording was admissible either as a business or public record; that the statements themselves, though hearsay, could be introduced either as excited utterances or present sense impressions; and that the statements were nontestimonial and therefore exempt from Confrontation Clause challenge.

After a two-day trial, Cadieux was convicted on one count of being a felon-in-possession of a firearm. The court subsequently imposed a sentence of 188 months incarceration, the minimum term applicable under the ACCA. See 18 U.S.C. § 924(e). This appeal followed.

II. Discussion

A. Confrontation Clause

Appellant first challenges the admission of the statements to the 911 operator. In Crawford v. Washington, the Supreme Court held that the Sixth Amendment's Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Appellant objects to the district court's classification of Jolene Nye's statements as nontestimonial.

We review "de novo the question of whether or not a given statement, in context, should be deemed testimonial." United States v. Brito, 427 F.3d 53, 59 (1st Cir.2005). In Crawford, the Court "offered no precise definition of which statements were to be regarded as testimonial and which were not." Brito, 427 F.3d at 59. Instead, the Court set out, "for illustrative purposes, a trio of formulations that [comes] within the `core class' of testimonial statements." Id. (quoting Crawford, 541 U.S. at 59, 124 S.Ct. 1354).

The first formulation encompasses "ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." The second encompasses "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." The third encompasses "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

Id. (quoting Crawford, 541 U.S. at 50-52, 124 S.Ct. 1354).

The Supreme Court has clarified the circumstances under which the admission of a 911 recording of an absent witness will offend the Sixth Amendment. See Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006). The Davis Court held that statements made to a 911 operator "are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Id. (emphasis added). By contrast, such statements are testimonial "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id.

The Davis Court identified several factors that should guide courts in this objective inquiry, including:

(1) Was the declarant speaking about current events as they were actually happening, "requiring police assistance" rather than describing past events?

(2) Would a "reasonable listener" conclude that the declarant was facing an ongoing emergency that called for help?

(3) Was the nature of what was asked and...