U.S. v. Gonsalves, 81-1265

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before CAMPBELL, BOWNES and BREYER; CAMPBELL
• Citation: U.S. v. Gonsalves, 668 F.2d 73 (1st Cir. 1982)
• Decision Date: 06 January 1982
• Docket Number: No. 81-1265,81-1265
• Parties: 9 Fed. R. Evid. Serv. 811 UNITED STATES of America, Appellee, v. John GONSALVES, Defendant, Appellant.

Page 73

668 F.2d 73

9 Fed. R. Evid. Serv. 811

UNITED STATES of America, Appellee, v. John GONSALVES, Defendant, Appellant.

No. 81-1265.

United States Court of Appeals First Circuit.

Argued Nov. 2, 1981.

Decided Jan. 6, 1982.

Steven A. Sussman, Watertown, Mass., by appointment of the Court, for appellant.

Robert B. Collings, First Asst. U. S. Atty., Chief, Crim. Div., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

CAMPBELL, Circuit Judge.

John Gonsalves appeals from his conviction of armed bank robbery under 18 U.S.C. § 2113(d). He contends that the district court erred in allowing into evidence a statement Gonsalves made to an FBI agent allegedly threatening a witness who had identified Gonsalves as the robber. Finding no abuse of discretion, we affirm both the district court's ruling and the conviction.

On January 6, 1981, the First Bank and Trust Company, a federally insured bank in Lowell, Massachusetts, was robbed when a man approached the "walk-up" window in the bank's outer lobby, showed the waiting teller a handgun tucked in his belt, and presented a written demand for all the teller's money. The robbery occurred at about five in the afternoon and took about three to four minutes to accomplish. Both the teller who turned over the money, Anna Morales, and another teller who was working near the walk-up window, Martha Mack, viewed the robber full-faced.

After the robber left, Morales told Mack what had happened; Mack pulled the robbery alarm; and the tellers filled out bandit description forms while awaiting the arrival of the police. Within an hour, the two tellers were brought to the Lowell police station where they examined, simultaneously and in different rooms, four books of mugshots, each book containing approximately 50 pictures. Anna Morales selected only one photo from these books-that of John Gonsalves-stating as she did so "I think that's him." Martha Mack selected six photos, then narrowed her choice to one-also that of John Gonsalves. The two tellers subsequently identified Gonsalves in person as he sat in a Lowell courtroom on an unrelated matter and again at Gonsalves' trial for the First Bank and Trust Company robbery.

Gonsalves defended by producing three witnesses who stated that at around 5:00 p. m. on January 6 Gonsalves was helping to close up a machine shop in Lowell where he worked. Leon Nadeau, the owner of the shop and a director of the Massachusetts Equipment Dealers Association, stated that Gonsalves left the shop just before 5:00 p. m. with Jack Plumley, Nadeau's business partner, as he, Nadeau, was closing. Jack Plumley corroborated this story, stating that he and Gonsalves left work at around 5:00 p. m. and drove directly to Plumley's home, a drive of some 20 minutes, ¹ where they ate dinner together with Plumley's wife, Elizabeth. Elizabeth, a secretary to the Director of Air Traffic Control Systems at a nearby Air Force base, corroborated this story. Gonsalves himself did not testify.

The only evidence other than the two identifying witnesses offered by the government against Gonsalves was the alleged threatening statement at issue on this appeal. While Gonsalves was awaiting trial on this and two other robbery charges ² in the Middlesex House of Correction at Billerica, Massachusetts, the FBI requested an opportunity to give him a lie detector test regarding the Lowell robbery. Gonsalves, in consultation with his counsel, agreed to take this test and signed a statement on the day the test was administered that anything he said during the interview could be used against him in court. Agent Bunszel, who administered the test, testified that Gonsalves maintained his innocence throughout the interview. Nevertheless, after he completed the lie detector test, ³ Gonsalves spontaneously stated, "That broad is dead." When Agent Bunszel asked "What broad?", Gonsalves replied, "That broad that identified me."

At trial, Gonsalves' attorney objected to allowing Agent Bunszel to testify to this statement, which the government said showed a consciousness of guilt. Gonsalves' attorney contended it was only minimally probative of guilt consciousness while being highly prejudicial and inflammatory. He argued that it would be most difficult to minimize the prejudice since, were he to cross-examine. Agent Bunszel vigorously, he would likely bring out that Gonsalves was in jail awaiting trial on other indictments and had failed the lie detector test. The district court nevertheless ruled that the statement could be admitted. The court discussed the statement's probative value and its possible unfair prejudice, weighing the one against the other in conformity with Federal Rule of Evidence 403 and concluding that the potential for unfair prejudice did not outweigh the statement's probative value. At defendant's request, however, the court gave a limiting instruction prior to the statement's introduction ⁴ and a further such instruction at the conclusion of the trial. Both the government and the defense mentioned the statement in their closing arguments. The government characterized it as a "death threat" proving consciousness of guilt. The defense argued that no one in his right mind would make a serious death threat concerning an adverse witness to an FBI agent and went on to say that the statement was merely an immature expression of Gonsalves' frustration at being misidentified for a serious crime. Gonsalves was convicted and this appeal followed.

Evidence of bad conduct, like the threat at issue here, is inadmissible to prove character in order to show the defendant acted in conformity therewith. Fed.R.Evid. 404(a). Such evidence may, however, be admissible for other purposes, such as to show intent, knowledge, or identity. Fed.R.Evid. 404(b). This court has recently held that "(e)vidence of threats to witnesses can be relevant to show consciousness of guilt." United States v. Monahan, 633 F.2d 984, 985 (1st Cir. 1980) (per curiam). Like evidence of flight from the scene of a crime, bribery of an adverse witness, or the destruction of incriminating evidence, threats made by a defendant respecting a specific hostile witness may imply that the party making the threat has something specific to hide. The desire to "cover something up," in turn, implies a consciousness of guilt of the particular crime charged. See 2 Wigmore on Evidence §§ 273-77 (Chadbourne Revision 1979).

While probative for this purpose, however, such evidence should not be admitted if its probative value "is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403. Other courts have held that evidence of...