USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1624

UNITED STATES,

Appellee,

v.

THOMAS BARTELHO,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Stahl and Lynch, Circuit Judges.

______________

_____________________

Christopher W. Dilworth, by
________________________

Appointment of the

Court, for

appellant.
Margaret D. McGaughey,
______________________

Assistant United

States

with whom Jay P. McCloskey, United States Attorney,

_________________
W. Murphy,
_________
appellee.

Assistant United States

Attorney, were on

Attorney,

and Richard
_______

brief for

____________________

December 5, 1995
____________________

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
____________

Defendant-appellant

Thomas

Bartelho ("Bartelho") challenges his conviction for possession of

a firearm

After

by a convicted felon

a jury trial in

under 18 U.S.C.

922 and 924.

the United States

District Court for the

District of Maine, Bartelho was sentenced

on May 26, 1995 to 120

months incarceration.

We affirm his conviction.

I.
I.

Viewed in

United States
_____________

115 S. Ct.

BACKGROUND
BACKGROUND

the light most favorable

v. Robles, 45 F.3d 1,
______

1416 (1995), a reasonable

to the government,

2 (1st Cir.), cert. denied,

____________

jury could have

found the

following facts.

At

Windham

about 9:20

Police

a.m.

Department

("Daigle"), the resident of

on Saturday,

received

a call

July

from

2, 1994,

the

Lori

Daigle

the first floor apartment in

a two-

unit

residence

on Route

ongoing disturbance in

with

young

his girlfriend

children,

apartment").

115 in

the upstairs unit.

Patricia

rented

Daigle

Windham.

Daigle

Bartelho, who

Harris ("Harris")

that

apartment

stated to

reported an

(the

and their

lived

two

"Harris-Bartelho

the dispatcher that

one of

her

upstairs neighbors, Harris, had complained to her at 2:00 a.m. of

being

assaulted by

her boyfriend,

identified then

as "Tommy."

Daigle also told the dispatcher that Harris had asked her to take

her

to the hospital.

expressed fear for her

chased her

down

Furthermore, Daigle

reported that Harris

18-month-old child, and that "Tommy"

the road

with

-2-2-

a loaded

rifle.

Daigle

had

also

explained

to the dispatcher that she had not heard the boyfriend

leave, and so he must still have been upstairs.

Four

scene.

police officers

were dispatched

to the

Meanwhile, dispatcher John Perruzzi tried to reach Harris

by phone

busy,

Windham

in

he had

the Harris-Bartelho

the

Harris, convinced

phone company

her to walk out

apartment.

break

Finding the

in, and

of the building

upon

line

reaching

to talk with

the officers waiting outside.

Harris

spoke

Raymond Williams.

were

responding

with

previously.

that

Thomas

she

Harris answered that

her boyfriend

but that

he

the

nervous,

them.

In

officers

Bartelho, possibly

and that

accord

concluded

with

she

and

assaulted and

she had had an

had left

their domestic

out of fear of reprisal.

30 minutes

eyes were puffy,

would not

that Harris

Officer

that the police

had been

The officers observed that Harris'

with

training,

report that

firearm.

she appeared

contact

Sergeant David

Officer Williams told Harris

to a

threatened with a

argument

to

was

make

eye

violence

protecting

In view of Daigle's

report, they did not believe Harris' statement, and instead asked

for her permission to

she denied.

enter the Harris-Bartelho apartment, which

Sergeant

would

enter

the

factors persuaded

Thomas then

apartment

told

Harris

without her

the officers to conduct

that the

permission.

officers

Several

a warrantless search,

including their belief that Harris was lying to protect Bartelho,

Daigle's statement

that Bartelho remained in

the apartment, the

-3-3-

fact that Route 115 is a busy highway where the

town's Fourth of

July

parade

dwellings

was

about to

nearby.

begin,

As they later

and

the

presence of

other

testified, they concluded that

if the defendant were allowed to remain in the apartment, a large

number of people would be exposed to the risk of harm.

Officer

stairway

that

Williams

led

to

and

the

Sergeant

Thomas

Harris-Bartelho

climbed

apartment's

the

main

entrance.

They entered the unlocked front door and searched the

premises.

Officer Williams checked the back porch, from which an

enclosed

stairway

leading to

second escape route from

watched

both exits

Thomas and Officer

apartment,

Officer

the

ground

the apartment.

as the

search took

Williams failed

Williams

level constituted

Officers on

place.

to find the

checked

the

the ground

After Sergeant

suspect in

back

porch

the

more

carefully, and noticed a

stove

on

the porch.

stairway,

and

loaded semiautomatic rifle on top

Officer

called out

Williams

the

name

looked down

of a

the porch

"Tommy," whereupon

Thomas

Bartelho emerged from his hiding place below.

On July

search

of the

robbery.

that

Bartelho-Harris

Part of the basis

the weapon

("the July 2

was

found

executed authorizing a

apartment for

evidence of

bank

for the warrant was the FBI's belief

during the

earlier, warrantless

search

search") was the same as the one that had been used

in a series of

search

6, 1994, a warrant was

bank robberies.

conducted on

Pursuant to the warrant, another

July 7

-4-4-

("the

July 7

search"), which

turned up additional items including a quantity of ammunition and

a stock and case for a rifle.

-5-5-

II.

DISCUSSION

II.

On appeal,

that

we

Bartelho contends that four

overturn his

government

DISCUSSION

conviction.

First,

issues require

he argues

that the

failed to prove that his firearm civil rights had not

been restored, as he asserts

it was required to do.

contends

that the

suppress

evidence found during the

Third, he claims

improper.

district court

court erred

wrongly denied his

July 2 and

and finally,

in allowing

testimony

he asserts

that he

motion to

July 7 searches.

that the district court's jury

Fourth,

Second, he

procedures were

that the

district

threatened to

kill

Harris.

A.
A.

Restoration of Felon Firearm Civil Rights

Restoration of Felon Firearm Civil Rights

Bartelho

appeals

his

conviction

under

18

U.S.C.

922(g)(1) (1994), which provides that it is unlawful for anyone

"who has

been convicted in

any court of

a crime punishable

by

imprisonment for a term exceeding one year . . . to possess . . .

any

firearm."

Bartelho's

crime was in 1990, when he

sentence.

As

noted in

semiautomatic

rifle during

apartment

close

in

last conviction

before the

instant

served one year of a five-year prison

the

facts,

the

their search of

proximity

discovered

defendant-appellant

government

presented

to

the

taped

the Harris-Bartelho

place

Bartelho,

Harris'

police discovered

and

pretrial

where they

at

also

trial

the

statement

that

Bartelho had threatened her while holding this weapon.

According to

denying his

motion

Bartelho,

to dismiss,

-6-

the district

which

court

contended (1)

erred

in

that

the

-6-

government was required to prove that his right to bear arms

not been

had

restored by the State of Rhode Island, and (2) that the

government

failed

reiterates

this argument on appeal.

interpretation of

to carry

18 U.S.C.

the term "crime punishable

one year" in

this

purported

burden.

The argument depends on his

921(a)(20) (1994),

which defines

by imprisonment for a term

922(g)(1) as follows:

Bartelho

exceeding

What constitutes a conviction

of such

a crime shall be determined in accordance

with the law of the jurisdiction in which
the

proceedings

conviction

were

which

set aside or for

held.

has been

Any

expunged, or

which a person has been

pardoned or has had civil rights restored

shall

not be considered a conviction for

purposes
pardon,

of

this

chapter, unless

expungement,

such

or restoration

civil rights expressly provides

person may not ship,

of

that the

transport, possess,

or receive firearms.

Bartelho

argues

possible

restoration of his civil

convict him under

showing

that

that

because

Rhode Island

has

right to carry

provided

for

a firearm, to

922(g)(1), the government bears the burden of

such restoration

has

not

occurred.

In

short,

Bartelho proposes that we treat this showing as an element of the

offense.

We reject

Bartelho's argument because we conclude that

a showing that the right to carry a firearm has not been restored

is not an element of a

Ramos,
_____

922(g) violation.

961 F.2d 1003, 1006 (1st Cir.

In United States
_____________

1992), we read

to require proof of three elements:

(1)that the accused is a convicted felon;

(2)who knowingly possessed a firearm;

-7-7-

v.

922(a)(1)

(3)which

was

connected

with

interstate

commerce.

Id. at 1006;
__

(10th

921

see also United States v. Flower, 29 F.3d 530, 534

________ ______________
______

Cir. 1994) (citing United States v. Shunk,

______________
_____

881 F.2d 917,

(10th Cir. 1989)); United States v. Sherbondy, 865 F.2d 996,

_____________
_________

1001-03 (9th Cir. 1988).

While neither

describes

or

the role that the

specifies who

burden

921(a)(20) nor

of

proof

continuing vitality,

the issue

raise or

of

we conclude that

the

922(g)(1).

ultimately

bear the

predicate conviction's

921(a)(20) is

legal definition for the phrase "conviction

one year" in

explicitly

921(a)(20) definition should play

must initially

on

922(g)(1)

merely a

for a term exceeding

Indeed, the title to 18 U.S.C.

921

is

"Definitions."

Furthermore,

words "[t]he term

'crime punishable by

exceeding one year'

exceptions.

921(a)(20)

Thus,

does not

imprisonment for a

include," and is

921(a)(20)

begins with

the

term

followed by

serves to narrow

the class

two

of

prior convictions down to a smaller class of convictions that may

serve as predicate

921(a)(20)

as a

convictions under

legal

taken explicitly by

922(g)(1).

definition accords

two other

circuits,

with the

see
___

To treat

approaches

United States
_____________

v.

Jackson, 57 F.3d 1012, 1016 (11th

_______

Cir. 1995); Flower, 29 F.3d at

______

534;

F.2d 402, 406 (4th Cir. 1993),

United States v. Clark, 993

_____________
_____

and implicitly

by several others, see United States v. Frushon,

___ ______________
_______

10 F.3d 663, 665-66 (9th Cir. 1993); Martin v. United States, 989
______
_____________

F.2d 271,

273 (8th

Cir.),

cert. denied,
____________

114 S.

Ct. 475,

126

-8-8-

L.Ed.2d 426 (1993); United States v. Cassidy, 889 F.2d

______________
_______

543, 545

(6th Cir. 1990).

We are

Flower.

persuaded by the

The significance of

approach of United States v.

______________

921(a)(20)'s definitional nature

______

is that the trial judge

bears the responsibility of

as a matter of law whether

922(g)(1)

case.

that

convictions

nullified or

criminal

535.

defendants

their civil

the government to

reject Bartelho's

F.3d at

Under Bartelho's

government would be required to

possibility

than require

a prior conviction is admissible in a

Flower, 29
______

proposed rule, the

determining

have

their

rights restored.

show a negative

interpretation.

had

refute every

prior

Rather

proposition, we

It is certainly

much easier

for criminal defendants to raise the issue of whether their prior

convictions have

restored.

been nullified or their

civil rights otherwise

Id.1
__

____________________

We note in passing that the only circuit to have held that the

government must prove the

previous conviction,
(4th

Cir. 1991),

"continuing validity" of a defendant's

United States
_____________
has

v. Essick,
______

recently clarified,

935 F.2d 28,

and limited,

31

their

previous conclusion in a manner instructive for the present case.

See United States v. Thomas, 52 F.3d 82, 85 (4th
___ _____________
______
also United States v. Clark,
____ _____________
_____
In

993 F.2d 402, 406 (4th Cir.

1993).

Thomas, the court limited Essick's holding, by ruling that it

______
______

did not apply

automatic
effect

to circumstances

where the

restoration provision

because

the defendant

had

Bartelho

urges that

we

holding.

But Essick
______

has been limited

it,

in

manner

and

such a

Bartelho was most recently

instant offense;
after

that

falling

Thomas, 52 F.3d at 85.

______
and

adopt its

original

by the court that

would

not benefit

requires that ten

a conviction

before a

issued

Bartelho.

12-1.3-3(b)(1)

-9-9-

the

years must

defendant can

by which Bartelho's civil right

a firearm could have been restored.

12-1.3-2(a),

law

have taken

convicted only four years before

initiate the expungement process

to carry

normally

prior conviction

follow Essick
______

Rhode Island law

completion of

underlying state

could not

within the statutorily prescribed period.

pass

Cir. 1995); see

___

(1956).

See R.I. Gen. Laws

___
Furthermore,

while

A claim of restoration of civil rights is in the nature

of an

affirmative defense.

conviction and

the

government,

As

a result,

corresponding loss of

as

with

any

other

civil rights is

factual

presumption is that that condition remains.

at

1016

("[W]here

affirmative

statutory exceptions, the ultimate

once a prior

defenses

felony

proven by

condition,

the

See Jackson, 57 F.3d

___ _______

are

created

through

burden of persuasion

remains

with the prosecution, but

forward with

sufficient evidence

issue.") (quoting

(11th Cir.),

535.

issue and

circumstances

See Jackson, 57
___ _______

make

as an

F.2d 1541, 1543

1245 (1984)).

It

produce evidence

the

of going

the exception

United States v. Laroche, 723

_____________
_______

to raise the

changed

inapplicable.

to raise

cert. denied, 467 U.S.

____________

the defendant

that

the defendant has the burden

original

is up to

showing

condition

F.3d at 1017; Flower, 29 F.3d

______

at

Defendant has not done so here.

Thus, upon de novo review, see,

__ ____
___

Three Juveniles, 61
_______________

novo issues
_____

find no

F.3d 86,

of interpretation

error of law, since

87 (1st Cir.

e.g., United States v.

___
_____________

1995) (reviewing

de
__

of federal criminal

statute), we

the government was not

required to

show

the validity

violation of

B.
B.

of his past

conviction in

order to

prove a

922(g)(1).

The Motion to Suppress

The Motion to Suppress

____________________

Bartelho contends
he had

not been

thereby
this

pardoned, see
___

R.I. Const. art.

to show that
IX,

13, and

had his civil rights restored, he cites no authority for

proposition

actually

that the government was required

involved

discretionary

other
an

than

Essick,
______

which

automatic restoration

expungement or pardon.

adopt the rule that Bartelho proposes.

-10-10-

as

noted

provision,

above,
not

At any rate, we decline to

With

respect to

district court's

States
______

findings

the motion to

suppress, we

review a

of fact only for clear error.

v. Mart nez-Molina,
_______________

64

Questions of law, however, are

F.3d 719,

726 (1st

subject to de novo
_______

United
______

Cir. 1995).

review.

Id.;
__

United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).

_____________
______

Prior to trial, Bartelho moved to suppress the evidence

garnered

in both

search, which

obtained

the July 2

he contended

evidence to

facts presented at the

warrantless search and

was tainted

procure the

by the

warrant used.

the July 7

use of

Based

July 2-

on the

evidentiary hearing, the magistrate judge

recommended

that the district

court deny Bartelho's suppression

motion, and the district court did so.

that

(1)

the

contraband

had

probable

cause

or evidence would

be found

inside, and

circumstances

officers

The district court

justified their

entry without

to

believe

found

that

(2) exigent

first obtaining

warrant.

On

erred

appeal,

Bartelho argues

by ruling that the

were constitutionally

July 2 search

protected.

that

the

district court

and subsequent seizures

He contends

that the evidence

found in the July 2 search should be excluded because

did

not have

probable cause

there were no "exigent

warrant.

July

the apartment,

and that

circumstances" to excuse their lack

Furthermore, he

7 search

to enter

the police

constitutes

argues that evidence

"fruit of

the

of a

gathered in the

poisonous tree"

and

should

also be suppressed.

See Wong Sun

___ ________

v. United States, 371

_____________

U.S. 471, 487-88 (1962).

-11-11-

First, we address Bartelho's

insufficient

probable cause

to support

into the Harris-Bartelho apartment.

contention that there was

the officers'

Probable cause to

entrance

conduct a

search

exists when "given all the circumstances, there is a fair

probability that

place

contraband

described."

Cir. 1986),

(1st Cir.

United States v.
_____________

cited in United States

________ _____________

1994).

made by evaluating

police.

or evidence

See
___

will be

found in

the

Moore, 790 F.2d 13, 15 (1st

_____

v. Wilson, 36
______

The determination

F.3d 205, 208

of probable cause is

the totality of the

to be

circumstances facing the

Illinois v. Gates, 462 U.S. 213, 238 (1983); United

________
_____
______

States v. Garc a, 983 F.2d 1160, 1167 (1st Cir. 1993).

______
______

Bartelho argues

allowed to rely on

that the

Daigle's statement that he

Harris-Bartelho apartment.

her apartment

known

whether

had left

via

back

the

Daigle was in

children, she could

the

have been

was still in

He argues that because

together with small

he

police should not

not have

stairs, which

were

detached from

the building and enclosed.

cites Harris'

statement to

the police

Furthermore, Bartelho

that he was

not in

the

building as evidence that they did not have probable cause.

Bartelho's

court

was

not

placement

know

required

to

if Bartelho had left.

officers

accept

the

The district

contention

that

the

of the back staircase made it impossible for Daigle to

was adamant

value,

arguments are not persuasive.

that Bartelho

were

was still

not required

especially given

The officers

to take

their

testified that Daigle

there.

Furthermore,

Harris' statement

domestic-abuse training.

-12-12-

the

at face

See,
___

e.g., United States v.

___
______________

(weighing

cause);

(D.C.

officers'

Taylor, 985 F.2d

______

experience

see also United States

________ _____________

Cir. 1995)

in

3, 6

(1st Cir.

determination

v. Henry, 48
_____

(upholding protective

of

the evidence

supported

regarding the

the district

sweep despite

existed for the police

totality of

court's conclusion

probable

F.3d 1282, 1284-85

that girlfriend told police her boyfriend had left).

that

1993)

the fact

We conclude

the circumstances

that

probable cause

to believe Bartelho was still

present in

the apartment, and we find no

Wilson, 36
______

court's

F.3d 205,

factual

209

(1st Cir.

findings,

determinations, for

clear error.

See United States v.

___ _____________

1994) (reviewing

especially

witness

district

credibility

clear error); United States v. Baldacchino,

______________
___________

762 F.2d 170, 175 (1st Cir. 1985).

Second, we address the critical limitation that "[e]ven

when

supported by

probable

cause, warrantless

entries into

person's home are per se unreasonable unless justified by exigent

___ __

circumstances."

at 208.

Moore, 790 F.2d at 15; see also

_____
________

Wilson, 36 F.3d
______

Bartelho argues that sufficient evidence did not support

the district court's finding that exigent circumstances justified

the officers' warrantless search.

To determine whether there is an exigency sufficient to

justify a warrantless

search and seizure,

the test is

"whether

there is such a compelling necessity for immediate action as will

not brook the

delay of

205, 209 (1st

Cir. 1994)

F.2d

41, 44

(1st

obtaining a warrant."

Wilson, 36
______

(quoting United States

_____________

Cir. 1980));

see also Hegarty

_________ _______

-13-13-

v. Adams,
_____

v.

F.3d

621

Somerset
________

County, 53 F.3d
______

fact-based

1367, 1374

(1st Cir. 1995).

inquiry, Wilson,
______

36 F.3d

at 209,

This

necessarily

requires that

we

consider factors including the gravity of the underlying offense,

whether a

safety,

delay would

pose a

and whether there

threat

is a

to police

or the

great likelihood

public

that evidence

will be destroyed if the search is delayed until a warrant can be

obtained.

Wilson, 36 F.3d
______

at 209-10; Baldacchino,
___________

762 F.2d at

176.

Bartelho

finding

that

warrantless

Perruzzi,

contends that

exigent

search.

the

circumstances

In

particular,

district

court erred

justified

he

the

officers'

emphasizes that

the dispatcher, found the telephone

in

John

line busy when he

called;

that Harris

had already

exited the

officers

arrived; and that

she provided

assault,

the

inside

these

existence of

the Harris-Bartelho

facts rebut

when the

no confirmation

firearm,

apartment.

the district

building

of an

or Bartelho's

presence

According to

Bartelho,

court's finding

that requisite

exigent circumstances existed.

The facts

that

that Bartelho cites do not

exigent circumstances

did not

argue that Perruzzi interrupted

the police should have

However,

must

reasonable

government.

(1st

review

inferences,

See, e.g.,
___ ___

the

light

most

United States v.
_____________

Cir. 1994), cert. denied,

whole,

114 S. Ct.

to

a phone

decided that all was

evidence as

in

Bartelho tries

Harris in the middle of

call, and so

we

exist.

compel a finding

well.

including all

favorable

Robles, 45
______

to

the

F.3d 1, 2

731, 126 L.Ed.2d 694

____________

-14-14-

(1994).

A busy

possibility

that Harris was making

the reasonable

the

hook.

signal would be

consistent not

a phone call,

inference that Bartelho

only with

the

but also with

had taken the

phone off

Moreover, as we have previously discussed, the police

were not required to take Harris' statements at face value, given

her demeanor,

their training

regarding

domestic violence,

and

Daigle's report.

We

finding

the

conclude that

requisite

the district

court

did not

exigent circumstances.

err in

Several

facts

address the reasons that this court has previously emphasized

determining whether exigent circumstances exist.

summoned by a caller

to the report, and

a man with a loaded

M.R.S.A.

in

The police were

who identified herself, lending credibility

reported that a woman was being threatened by

rifle, certainly a grave offense.

1252(4) (1983 &

See 17-A
___

Supp. 1994) (increasing penalties for

crimes if a "dangerous weapon" is used); see also L pez, 989 F.2d

________ _____

at 26

factor

(considering presence of

in upholding

a firearm used

warrantless search).

in assault

Other

as a

facts suggest

that delay would have risked public safety.

The scene was near a

busy highway

that was on the route

July parade.

Besides the parade, there were also other dwellings

nearby.

Furthermore, Bartelho may

conversation with

ambush.

well have known from Harris'

the dispatcher, or from

the police were waiting for him.

risked an

of a soon-to-begin Fourth of

looking outside, that

By waiting, the police may have

See United States v. L pez, 989

___ ______________
_____

F.2d 24, 26

(1st Cir. 1993) (noting that police are allowed to consider their

-15-15-

own safety).

might

have been

inquiry by

lead

Moreover,

us

any normal delay in obtaining

exacerbated

this court's

to uphold

the

by the

holiday.

a warrant

Guided

in

our

previously adopted rubric,

these facts

district

of

court's

finding

exigent

circumstances.

Because we uphold the district court's finding that the

July 2 search was

legal, we do not consider

Bartelho's argument

that the July 7 search warrant was tainted by illegality.

C.
C.

refusing

Jury Procedures
Jury Procedures

Bartelho also

argues that the district

to

the

discharge

jury

panel

after

court erred by

another

case's

indictment, involving the same model of firearm and

witness, had already been

jury

the

selection.

jury

to

an identical

read to the panel during voir dire and

According to Bartelho, these facts may have led

associate him

with

the

defendant

unrelated trial on a more serious charge.

who faced

an

Bartelho contends that

he was thus denied a fair trial.

In empaneling a jury,

a district court has a

"duty to

determine the question of actual bias, and [] broad discretion in

its rulings

339 U.S. 162,

on challenges therefor."

168 (1950);

see also Kotler

________ ______

Co., 926 F.2d 1217, 1228 (1st Cir.

___

juror

prejudice, "we will

empaneling a

Dennis v.
______

v. American Tobacco
_________________

1990) (in absence of manifest

not set aside

jury which [the

United States,
_____________

judge's

actions in

judge] reasonably considers

to be

suitable

discretion

and impartial").

We review a trial judge's exercise of

in empaneling a jury

for "clear abuse."

See, e.g.,
___ ___

-16-16-

United States v.
_____________

McCarthy, 961
________

United States v. Ploof, 464

_____________
_____

F.2d 972, 976

(1st Cir.

1992);

F.2d 116, 118 n.4 (2d Cir. 1972).

Although we have been unable to find any cases squarely

on point, prior cases in this circuit that address related issues

lead

us

to reject

Bartelho's argument.

Carranza, 583 F.2d 25

________

In United States v.
______________

(1st Cir. 1978), we adopted

the following

rule:

unless

specific

showing

of

bias or

prejudice is made, the fact that a

sat in

a prior

case involving

juror

the same

government witnesses and the same type of

crime

will

not

disqualification
defendant

is

be
per
___

charged

grounds
se
__

for

unless

with

an

the

offense

arising from the same transaction.

Id.
___

at 28.

Here, Bartelho has

bias or prejudice.

neither heard

not made a

Furthermore, unlike in

the witnesses

nor

saw the

specific showing of

Carranza, his jurors

________

evidence against

the

other defendant.

Additionally, Bartelho's charge (being a felon-

in-possession)

and the

robbery)

not

were

the

other relevant defendant's

same

type

of

similarities between Bartelho's case and

jury was empaneled are insufficient.

Morales-D az,
____________

argument

925

of bias

F.2d

535,

based on

crime.

charge (bank

Finally,

the

the one with which

his

See, e.g., United States v.

___ ___
_____________

537 (1st

Cir.

several jurors'

1991)

(rejecting

prior service

different case involving another Hispanic drug defendant).

Bartelho

has

considerably

less

prejudice

than the

defendant in

persuade

this court.

We note

previously

emphasized

the

basis

for

an

Carranza, who
________

in passing

importance

-17-17-

of

in a

Thus,

allegation

of

also failed

to

that this

caution

court has

under

the

Carranza rule in addressing challenges that threaten the judicial

________

economy of

effects

multiple empanelment based on

of this system when

the negligible adverse

properly handled, as

here.

United
______

States v. Maraj, 947 F.2d 520, 525 (1st Cir. 1991).

______
_____

For these reasons, we find that the

district court did

not abuse its discretion by not discharging the panel.

-18-18-

D.
D.

Harris' Testimony on Bartelho's Death Threats

Harris' Testimony on Bartelho's Death Threats

Lastly,

Bartelho

challenges

the

district

decision to allow Harris to testify that Bartelho

to

kill her.

On

relevance grounds,

had threatened

Bartelho objected

government's questioning of Harris on redirect regarding

Bartelho

had threatened to kill

testimony.

Citing

Federal

argues that although the

to

motive,

prejudicial.

the

such

her, but the

Rule of

He contends that this

likelihood of

Evidence

was

highly

to the

whether

court allowed the

403,2

death threat may have been

testimony

court's

Bartelho

relevant as

inflammatory

and

testimony thereby increased

conviction based

on

emotion rather

than

facts, thus denying him of a fair trial.

The

balancing of

probative value

against prejudicial

impact under

the

trial

Rule 403 will not be disturbed on appeal as long as

court

"does not

stray

United States v. Rodr guez-Estrada,

_____________
_________________

1989) (quoting United States

_____________

Cir. 1985)).

We review

entirely

beyond

877 F.2d 153, 156

the pale."

(1st Cir.

v. Tierney, 760 F.2d 382,

_______

the trial court's ruling only

388 (1st

for abuse

of discretion, see Tierney, 760 F.2d at 388, bearing in mind that

___ _______

the limitations

of Rule 403 are to

be "rarely invoked."

United
______

States v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1984).

______
_____

____________________

2
has

It is not entirely clear from the record that a Rule 403 issue
been preserved

Bartelho

tacitly

objections.

for appeal.
waived

a Rule

The

government contends

403

objection

via his

that

later

Nonetheless, the ambiguity is irrelevant here, since

we

do not consider the

issue of waiver,

as Bartelho's argument

fails on other grounds.

-19-19-

We uphold

testimony.

Harris

the district

was the

court's decision to

only government

witness who

physical possession

could

testify

that Bartelho

weapon.

In fact, before trial she had so testified, and had been

recorded on tape.

actually had

allow the

of the

However, at trial she denied that Bartelho had

had a gun.

elements

Given that

of the

Bartelho had

crime

she was the best

of

witness to one

felon-in-possession,

previously threatened her life

of the

evidence

that

was highly relevant

to the jury's decision whether to credit her taped version of the

facts or her conflicting trial testimony.

Furthermore, only

fact

threats was

that Harris

told others

about the

there were no sensational details.

district

court did

not abuse

Thus,

we

its discretion

elicited;

conclude that

in

the

the

admitting the

evidence of the threats.

For the foregoing reasons, the judgment of the district

court is affirmed.
affirmed.
________

-20-20-