U.S. v. Guerrero, 85-5852

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: Before ADAMS, STAPLETON and GARTH; ADAMS
• Citation: U.S. v. Guerrero, 803 F.2d 783 (3rd Cir. 1986)
• Decision Date: 15 September 1986
• Docket Number: No. 85-5852,85-5852
• Parties: 21 Fed. R. Evid. Serv. 1278 UNITED STATES of America v. Gabriel GUERRERO, Appellant. . Submitted Under Third Circuit Rule 12(6)

Page 783

803 F.2d 783

21 Fed. R. Evid. Serv. 1278

UNITED STATES of America v. Gabriel GUERRERO, Appellant.

No. 85-5852.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Sept. 15, 1986.

Decided Oct. 27, 1986.

Russell J. Carbone, Hackensack, N.J., for appellant.

Thomas W. Greelish, U.S. Atty. (Peter C. Harvey, Asst. U.S. Atty., on brief), Newark, N.J., for appellee.

Before ADAMS, STAPLETON and GARTH, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This is an appeal from a criminal conviction challenging the admission into evidence of testimony that the defendant had threatened a witness in order to induce him not to testify against the defendant at trial. The defendant challenges the district court's admission of this "threat evidence" under Federal Rules of Evidence 403 and 801.

I.

Gabriel Guerrero was convicted in the United States District Court for the District of New Jersey on November 7, 1985, of conspiracy to distribute and to possess with intent to distribute cocaine, and the use of a telephone to facilitate the conspiracy. He was sentenced to 14 years imprisonment.

At the trial, three of Guerrero's alleged co-conspirators, Sergio Cabrera, Kenny Dannenberg and William Challenger, having entered cooperation agreements with the government, testified against him. Although Severo Sanclemente had also signed such an agreement, he refused to testify. Sanclemente's daughter testified that she was not aware that Guerrero was involved in cocaine dealings although she did know a number of her father's associates such as Dannenberg. This contradicted testimony, tending to implicate Guerrero, that she had given at an earlier trial.

Co-conspirator Cabrera, on the other hand, testified that Guerrero had sought through threats to inhibit or deter his cooperation with the government. The alleged threats occurred while Guerrero, Cabrera and Sanclemente were all incarcerated at the Metropolitan Correctional Center in New York City. Both Sanclemente and Cabrera had pleaded guilty to participation in the conspiracy and had been sentenced. Guerrero had subsequently arrived at the center for detention pending trial. Under a detention order that had been entered by the district court, Guerrero was to be held in an area separate from persons, such as Cabrera and Sanclemente, who were serving sentences.

Cabrera testified that, despite the detention order, on October 6, 1985, Guerrero entered Cabrera's cell and proceeded to discuss the upcoming trial. In the course of their conversation, Guerrero allegedly counseled Cabrera to refuse to testify against him. When Cabrera replied that he knew of others who would testify even if he did not, Guerrero allegedly responded that he would "take care" of these other witnesses, and remarked that he knew where Cabrera's family was living. Cabrera testified that, although the whole exchange had at first seemed casual and friendly, it later occurred to him that Guerrero's words were menacing. Cabrera claims that the next day he reported Guerrero's threats to the U.S. Attorney.

The trial judge, the Honorable John W. Bissell, properly considered the admissibility of this "threat evidence" at a hearing outside the presence of the jury. Judge Bissell first considered whether the encounter Cabrera described was likely to have taken place, and concluded that the alleged meeting was not so incredible as to require rejection of the proffered testimony out of hand under Federal Rule of Evidence 403.

Holding that the proffered "threat evidence" did not constitute hearsay because it was a statement of a party, admissible pursuant to Rule 801(d)(2)(A), Judge Bissell then considered whether Rule 403 required exclusion of Cabrera's testimony on the grounds that "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentations of cumulative evidence." Fed.R.Evid. 403.

Judge Bissell held that Cabrera's testimony "certainly" had probative value, and was not outweighed by the considerations listed in Rule 403. He therefore allowed Cabrera's testimony concerning Guerrero's alleged threat to be heard before the jury. Guerrero was convicted, and now appeals.

II.

Guerrero contends that Cabrera's testimony constituted inadmissible hearsay evidence. As the trial court correctly held, however, the hearsay rule does not apply to statements made by a party that are offered against that party. We therefore turn to defendant's argument that the district court erred in admitting prejudicial and confusing evidence with little probative value.

Rule 403 calls for "balancing the probative value of and need for the evidence against the harm likely to result from its admission." Advisory Committee Notes, Fed.R.Evid. 403. Like any balancing test, the Rule 403 standard is inexact, requiring sensitivity on the part of the trial court to the subtleties of the particular situation, and considerable deference on the part of the reviewing court to the hands-on judgment of the trial judge. Thus, a trial judge is given broad discretion in weighing the probative value of evidence against its potential prejudicial effect. United States v. Higgins, 458 F.2d 461 (3d Cir.1972). A trial judge's ruling under Rule 403 may be disturbed only when the judge has clearly abused his discretion. United States v. Clifford, 704 F.2d 86 (3d Cir.1983).

The vagueness of the balancing standard has led to some confusion in its application to threat evidence, however. We take this occasion to set out briefly the factors to be considered by a trial court in determining the outcome of that balance.

"Threat evidence" may be admitted to show consciousness of guilt. United States v. Gonzalez, 703 F.2d 1222 (11th Cir.1983); United States v. Rosa, 705 F.2d 1375 (1st Cir.1983). Although threats are thus of relevance to the proceeding, they constitute a striking example of evidence that "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish," or otherwise "may cause a jury to base its decision on something other than the established propositions in the case." Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.1980) (citing J. Weinstein & M. Berger, Weinstein's Evidence Sec. 403 at 403-15 to 403-17 (1978)). See also Advisory Committee Notes, Fed.R.Evid. 403 (courts should exclude evidence that risks "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one").

The Advisory Committee Notes refer to balancing the probative value of and need for the evidence....