USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-2178

UNITED STATES,

Appellee,

v.

DWAYNE YOUNG,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Stahl,

Circuit Judges.
______________

____________________

Karl R.D. Suchecki with

___________________

whom

Jennifer Petersen
_________________

and Petersen
________

Suchecki were on brief for appellant.

________
Andrea Nervi Ward, Assistant
__________________

United States

Attorney, with

Donald K. Stern, United States Attorney, was on brief for appellee.

_______________

____________________

January 23, 1997

____________________

STAHL,
STAHL,

Circuit
Circuit

Judge.
Judge.

In

May

1995,

jury

______________

convicted

unlawful

922(g)(1).

suppress,

defendant

Dwayne

possession of

Young

a firearm

on

by a

single

felon, 18

the

district

so-called "turret

court

admitted

the

U.S.C.

tape," a recording of

foot pursuit

allowed

transcript as

the

firearm

and

The district court also admitted a

radio transmissions

between a police officer and his dispatcher,

court

of

During trial, and after denying Young's motion to

ammunition into evidence.

officer's

count

of

jury

Young.1

to

use

an aid in listening

being played during trial.

made during the

Finally, the

district

government-prepared

to the tape while

it was

Finding no error, we affirm.

Background
Background
__________

On

April 7,

Twitchell of the

the

James Fee

and Robert

Boston Police Department, while

patrolling

Roxbury section

describing

Several

three

blocks

1994, Officers

of Boston,

individuals

from

the

received a

suspected

last

seeing

of

reported

suspects, the officers noticed a group

the unmarked

radio broadcast

armed robbery.

location

of

the

of three men standing

together.

Upon

cruiser,

the

group

dispersed.

One of the three, Young, walked in one direction

____________________

1.

The

term "turret

broadcasts

tape"

between Boston

Specifically,
communications

"turret"
facility

refers to

recordings of

Police officers

derives

from

which

records

radio

and dispatchers.

the
such

fact

that

the

transmissions

resides in aturret tower at the Boston Police headquarters.

-2-

by himself while the

other two departed together

in another

direction.

The officers, noting that Young's short height

black clothing appeared

to match the

the

pulled

robbery

suspects,

alongside Young.

From

description of one

their cruiser

to

the

and

of

curb

the passenger seat, Officer Twitchell

rolled down his

a minute?"

to

window and announced "Boston Police, you got

which Young

responded

"Sure."

"angled" toward the rear of the cruiser.

the

car,

the

protruding from

Young

through

contact

the

officers

noticed

his waistband.

the

window

with his jacket or

gun or

detain

him.

of the

cruiser,

turned

of

handgun

Twitchell lunged at

belt, but failed

Young

then

As Young approached

the handle

Officer

Young

and

made

fleeting

to either grab

ran from

the

cruiser, with Twitchell, now on foot, in pursuit.

During

remove

basement

Young

the

the

gun from

stairwell of

successfully

apprehended

pursuit, Officer

his waistband

a building

eluded

and

Twitchell

throw it

on Elm Street.

Twitchell,

he

was

saw Young

into the

Although

ultimately

by a back-up police officer who found him hiding

in a nearby garage.

stairwell

Officer Twitchell then returned

and recovered

the gun.

While these

unfolding, Officer Twitchell and other

transmitted

information

to

the

-33

to the

events were

officers continuously

dispatcher

at

the Boston

Police headquarters.

These transmissions comprise the turret

tape.

Prior to trial, Young moved to suppress the gun and

the turret tape.

Young asserted

the gun through

a violation of his

and argued

that the

that the police

recovered

Fourth Amendment rights,

tape constituted

inadmissible hearsay.

The district court denied Young's motion to suppress the gun,

but

granted his motion with respect to the turret tape, with

the caveat

that

defense counsel's

subsequently render

it admissible.

cross examination

During trial

might

and after

defense counsel's cross examination of Officer Twitchell, the

district court admitted the turret tape as a prior consistent

statement, and allowed the jury to use a transcript

prepared

by the government, as an aid in listening to the turret tape.

Young appeals

admission of the gun and

tape, as well as use

of the transcript.

Discussion
Discussion
__________

A. Suppression of the Gun

__________________________

We employ

suppress.

We review

for clear error.

441 (1st

and

the district court's

"A

findings of fact

clear error exists only

if, after

all of the evidence, we are left with a definite

firm conviction that a

States v.
______

reviewing motions to

See United States v. Bartelho, 71 F.3d 436,

___ _____________
________

Cir. 1995).

considering

a dual standard in

McCarthy,
________

77

mistake has been

F.3d 522,

529

(1st

made."

Cir.),

United
______

cert.
_____

-44

denied, 117 S.
______

court's

Ct. 479

findings of

(1996).

fact

Deference

reflects our

to the

district

awareness that

the

trial judge, who hears the testimony, observes the witnesses'

demeanor and evaluates the facts first hand, sits in the best

position

to determine

what actually

happened.

See United

___ ______

States
______

v.

Zapata, 18
______

F.3d 971,

975 (1st

contrast, we review

conclusions of law

the

constitutional

trial

review.

court's

See id.; see

___ ___ ___

Ct. 1657, 1663 (1996).

reasonable

law

review de novo.
__ ____

Young

conclusions

Determinations

seizures

Amendment, present

de novo and
_______

to

plenary

S.

of probable cause and

to the

and

By

subject

also Ornelas v. United States, 116

____ ________________________

suspicion, relevant

enforcement

Cir. 1994).

arrests

constitutionality of

under

mixed questions of law and

the

Fourth

fact which we

See Ornelas, 116 S. Ct. at 1663.

___ _______

argues

that

the

district court

erred

by

concluding that recovery of the firearm did not occur through

conduct

that

violated

his

Fourth

Amendment

rights.

Specifically,

Young contends that Officers Twitchell and Fee

lacked either the reasonable suspicion needed to stop him, or

the probable cause required for an arrest.

Interaction between law

citizens

generally

Amendment

intrusion

encompasses

analysis,

falls

enforcement officials

within

depending

three

on

into a person's privacy.

interaction of

the

and

tiers

of

Fourth

level

of

police

The first or lowest tier

such minimally

-55

We disagree.

intrusive nature

that

it

does

Amendment.

not trigger

The Supreme

the

to the

of the

level of a

between the police and citizens

stop or

seizure.

See Florida v.
___ _______

Bostick, 501 U.S. 429, 434 (1991) (citing cases).

_______

approach

citizens in

without triggering

See
___

Fourth

Court has repeatedly emphasized that

not all personal intercourse

rises

protections

public spaces

and ask

the protections of the

Police may

them questions

Fourth Amendment.

id.; United States v. Manchester, 711 F.2d 458, 460 (1st

___ _____________
__________

Cir. 1983).

Such police engagements need not find a basis in

any

articulable suspicion.

Police conduct

falls short

protections when, from the

determine that

have

along his

way.

to

of

Bostick, 501
_______

triggering Fourth

of any police

terminate the

between the

lunge

See Bostick, 501

___ _______

this case establishes

within

the first

interaction, and therefore, fails

of the Fourth Amendment.

Amendment

proceed

U.S. at 439; United States

_____________

officers and Young prior

falls well

435.

interaction would

conversation and

v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994).

______

circumstances in

U.S. at

totality of the circumstances, we

the subject

felt free

See
___

The totality of the

that any interaction

to Officer Twitchell's

tier of

police-citizen

to trigger the protections

As they pulled alongside Young, the

officers identified themselves as Boston Police officers, and

asked

"got a

district

detect

court

minute" to

credited

no clear error.

which Young

the

replied "sure."

officers'

testimony,

The

and we

We recently determined that conduct

-66

virtually identical to

trigger

the

what occurred

protections

of

the

in this

Fourth

case did

not

Amendment,

and

concluded that

physical

in the

force or

authority,

absence of

an officer's

an individual's submission

no seizure

occurs.

See Sealey,
___ ______

exertion of

to a

show of

30 F.3d

at 10

(finding no Fourth Amendment seizure where police officers in

a cruiser approached defendant and yelled "Hey Steven, what's

up?") (citing California v. Hodari D., 499

__________
_________

We reiterate

that conclusion

U.S. 621 (1991)).

with respect to

the officers'

conduct toward Young prior to Officer Twitchell's lunge.

The

remaining

analysis comprise

two

tiers

of

Fourth

Amendment

de facto arrests requiring probable cause,

__ _____

and lesser seizures generally known as investigative or Terry

_____

stops,

which

require a

lesser

reasonable

suspicion.

An

arrest occurs when an officer, acting on probable

an individual has committed

as

a suspect.

relying

a crime, detains that individual

Probable cause exists

on reasonably

cause that

when police officers,

trustworthy facts

and circumstances,

have information upon which a reasonably prudent person would

believe

the suspect had committed or was committing a crime.

See United States

___ _____________

v. Maguire,
_______

918 F.2d 254,

258 (1st

Cir.

1990), cert. denied, Kavanagh v. United States, 501 U.S. 1234

_____ ______ ________
_____________

(1991).

see Terry
___ _____

officer,

An investigative

stop, also known as a

v. Ohio, 392 U.S.

____

acting on

1 (1968), occurs

reasonable and articulable

-77

Terry stop,
_____

when a police

suspicion of

criminal activity, briefly

or

dispel

his suspicion.

detains an individual to

See
___

McCarthy,
________

77 F.3d

confirm

at 529;

United States v. Schiavo, 29 F.3d 6, 8 (1st Cir. 1994).

_____________
_______

The

government

appeal, that when Officer

he

seized him

for

concedes,

for

purposes

of

this

Twitchell made contact with Young,

Fourth Amendment

purposes.

See, e.g.,
___ ____

Zapata, 18 F.3d at 977 (indicating that officer's touching of

______

citizen

during ongoing

seizure

occurred).

this point, we

occurred

investigative stop

In the

absence of further

proceed under the

in this

case.

establishes that

Young

argument on

assumption that a

contends that

seizure

the officers

either seized him without the requisite reasonable suspicion,

or

arrested him

conclude that

physical

to the

probable cause.

extent the officers,

contact, seized Young, they did

parameters of

actions

without the requisite

do

an investigative stop, and

not rise

to the

level

of an

We

through fleeting

so well within the

that the officers'

arrest requiring

probable cause.

With respect to

investigative stops, the

relevant

question "is

act, but

under

not whether

instead whether

inception,

McCarthy,
________

pronged test

must determine whether the

and, if

probable cause

the actions taken

the circumstances."

familiar two-

its

the police had

77

guides this

to

were reasonable

F.3d at

inquiry.

529.

We first

officer's action was justified at

so,

whether the

-88

action

taken was

reasonably

related

in

scope

justified the interference.

Kimball, 25 F.3d 1, 6 (1st

_______

to

the

circumstances

which

See id. at 530; United States v.

___ ___
_____________

Cir. 1994).

To satisfy the first

prong, "'the police officer must be able to point to specific

and

articulable facts

inferences

intrusion.'"

at 21).

from

which, taken

those

facts,

together

reasonably

with rational

warrant

that

Kimball, 25 F.3d at 6 (quoting Terry, 392 U.S.

_______
_____

To satisfy the second prong, we examine the totality

of the circumstances, see

___

United States v. Walker, 924

_____________
______

F.2d

1, 4 (1st Cir. 1991), bearing in mind that "an officer may []

conduct

a patdown search

where the officer

is justified in

believing

that the

person

is armed

and

dangerous to

officer or others," Schiavo, 29 F.3d at 8. According

_______

district court,

suspicion

the following facts gave

necessary to

officers saw three

to

temporarily detain

to

the

the

rise to reasonable

Young:

(1) the

individuals, one or more of whom appeared

match the description of three armed robbers who had been

spotted in the area; (2) as they approached, one of the three

(Young)

walked

Officer Twitchell

away from

that he

the group;

(3) Officer

thought he recognized

Fee told

the person

walking away (Young) as a "bad guy;" (4) upon asking Young to

answer some questions,

Young angled toward

car instead of directly toward

as

Young

approached,

both

the rear of

the

the passenger window; and (5)

officers

saw

gun

in

his

waistband.

Careful review

of

the record

from

which the

-99

district court drew these

findings does not leave us

with a

"definite

and firm conviction that a mistake has been made,"

McCarthy,
________

77 F.3d at 529, and those findings are not clearly

erroneous.

We are satisfied, moreover, that

these facts in

their totality

could give

rise to the

officers' reasonable

suspicion that Young had been involved in criminal activity.

We also conclude

the

lunge at Young, was

circumstances.

that

that Officer Twitchell's

reasonably related in

In agreeing

action,

scope to the

with the district court we

note

sight of the gun gave rise to a significant concern for

the officers' and public's safety.

(officer's

concern

importance" in

taken).

To

for

own

assessing the

See Walker, 924 F.2d at 4

___ ______

safety

of

"paramount

appropriateness of

the action

open the door of the cruiser

is

and question Young

would

have afforded Young an opportunity to use the gun, and

could

have placed the officers

way.

and any bystanders in harm's

To be sure, the

Young

remove

carried the

officers did not determine whether

firearm

legally prior

it or restrain him.

"'[c]onduct innocent in

As we

observer.'"

Cir.

United States
_____________

1979)).

untrained may carry

to the experienced or

trained

v. Stanley, 915 F.2d 54,

_______

56 (1st

1990) (quoting United States v.

_____________

560 (9th Cir.

to

have indicated, however,

the eyes of the

entirely different 'messages'

to attempting

"Weighing

-1010

Bernard, 623 F.2d 551,

_______

'the limited violation

of

the individual's privacy

crime prevention

safety,'"

Cir.

against the

and detection

United States v.
______________

1987), we

opposing interests

and in the

police officer's

Quinn, 815 F.2d

_____

conclude that

in

153, 156

Officer Twitchell's

(1st

lunge at

Young, and the attendant physical contact, were reasonable in

scope and the circumstances justified the intrusion.

Young,

resulting

encounter

from

to

however, argues

Officer

a de
__

facto
_____

that the

Twitchell's

arrest,

physical contact

lunge

elevated

which required

the

probable

cause.

We have

incidence

recently rejected the contention

of physical

contact, even

that every

de minimis,
__ _______

between a

police officer and a citizen, constitutes an arrest requiring

probable case.

See
___

Zapata, 18 F.3d at 977

______

police touching of individual

seizure to

an arrest).

constitutes an arrest

difficult

scientific

task.

investigative stops

to

the level of

suspect's position

the circumstances

does not necessarily elevate a

Parsing whether

any given

seizure

or a lesser seizure, however, proves a

See
___

formula

(indicating that

id.
___

at

exists

and arrests).

an arrest

975

(explaining

to

distinguish

Police

when "'a

no

between

conduct will rise

reasonable man

would have understood his

then obtaining, to be

that

in the

situation,' in

tantamount to being

under arrest."

See
___

id. (quoting
___

Berkemer v.
________

McCarty, 468
_______

U.S. 420, 442 (1984)).

-1111

Factors that can elevate

a non-arrest seizure to a

de facto arrest requiring probable cause include extending an

__ _____

investigative stop

dispel

beyond the

reasonable suspicion,

suspect's exit such

free to leave.

guns and

the

however,

do

into an

area

e.g.,
____

and

presence

of more

See id.
___ ___

reasonable

in any

one

convert an

Above all

evince the fact specific

F.3d at

than

the

would not feel

The use

police

of

officer,

investigative stop

else, our cases in this

nature of the

inquiry.

("Whether police

particular context

confirm or

blocking

918 F.2d at 259.

not necessarily

Kimball, 25
_______

physically

that a reasonable person

See Maguire,
___ _______

arrest.

time necessary to

depends on

See,
___

activity is

the facts

which are unique to that incident.").

By lunging at and

brushing his hand against Young,

Officer Twitchell did

not impose "'restraints comparable

those of a

formal arrest.'"

Berkemer,
________

468 U.S. at 441).

Young's freedom

briefly.

to

Quinn, 815 F.2d at 156 (quoting

_____

The officers

did not restrain

of movement or succeed in detaining him even

Nor did

the officers ever communicate

verbally to

Young that he was under arrest or that

they wanted to arrest

him.

reasonable person

Under

those

Young's position

circumstances, no

could have understood his

tantamount to being under

In light of police

arrest."

in

situation "to be

Zapata, 18 F.3d
______

conduct we have determined to

at 975.

fall short

of de facto arrest, we affirm the district court's conclusion

__ _____

-1212

that

Officer

Twitchell's de
__

Young did not effect an

(holding

that de
__

investigative stop

(holding that

minimis physical
_______

arrest.

contact with

Cf. Zapata, 18 F.3d

___ ______

minimis physical
_______

contact did

into arrest);

Quinn, 815 F.2d

_____

presence of several officers

at 977

not convert

at 156-57

and the blocking

of defendant's

arrest);

car did

United States
_____________

not convert investigative

v. Trullo,
______

809 F.2d

stop into

108,

113 (1st

Cir.) (holding that police officer's use of drawn gun did not

convert

investigative stop into

arrest); cert.
_____

denied, 482
______

U.S. 916 (1987).

B. Admission of the Turret Tape

________________________________

At trial,

tape, a recording of

Twitchell

and his

the district

court admitted the

turret

the radio transmissions between Officer

dispatcher during

his pursuit

of Young.

The district court initially declined to allow the

tape, but

warned defense counsel that questioning on

of

Officer Twitchell might

prior consistent

render the tape

statement under

Rule

cross examination

admissible as a

801(d)(1)(B) of

the

Federal

Rules

of

Evidence.

On

appeal

Young renews

his

hearsay objection to the tape.2

____________________

2.

Young

also

asserts

that

the

tape

proper

foundation,

and cannot

Twitchell's

present sense impressions or excited utterances.

See
___

Fed.

R.

Evid.

be characterized

lacked

803(1)

and

(2).

as either

With

respect

foundation, we note that

Young failed to object to

on foundation grounds at

trial.

We will

plain error, and

conclude that the

admitted

the

sufficient

States v.
______

on

the tape

district court

foundation.

Mitchell, 85 F.3d 800, 807 (1st Cir. 1996).

________

-1313

to

review, therefore,

only for

tape

Officer

United
______
Prior

We

for

review the district court's evidentiary rulings

abuse of discretion.

See United States

___ _____________

F.3d 994, 1008 (1st Cir. 1995),

(1996).

v. Alzanki, 54
_______

cert. denied, 116 S. Ct. 909

_____ ______

Rule 801(d)(1)(B) provides in relevant part:

(d)
(d)

Statements which are not hearsay.

Statements which are not hearsay.

statement is not hearsay if--

(1)
(1)

Prior
Prior

statement
statement

witness.
witness.
testifies
hearing

at
and

by
by

The

declarant

the

trial

or

subject

to

is

cross-examination

concerning

the

and

statement,

the

statement

is

(B)

consistent with the declarant's

testimony

and

rebut

express

an

is

offered
or

to

implied

charge against the declarant of

recent fabrication

or improper

influence or motive . . .

Fed. R. Evid. 801(d)(1)(B).

we

view the

lower

rebuts an express

finding of

For Rule 801(d)(1)(B) purposes,

court's determination

that a

statement

or implied charge of recent fabrication as

fact, subject

to reversal

only if

it proves

government

elicited

____________________

to

playing

Twitchell's

the

tape,

testimony

the
that

recording of the broadcast,

recognized all of
his knowledge,

he

recognized the

tape

he had listened to the

the voices on it, and that

the tape fairly and

Officer
as

tape, he

to the best of

accurately reflected the

radio

transmissions

that occurred

that

evening.

In

the

absence of any foundation-based objection by defense counsel,

we cannot
error.
conclude

conclude that
With

respect to

that the

tape

the district judge

committed plain

Young's alternative
was properly

admitted

arguments, we
as a

consistent statement, and, therefore, we decline to

prior

consider

them.

-1414

clearly

erroneous.

(1st Cir. 1989).

United States v. Piva, 870 F.2d 753, 758

_____________
____

During direct examination

of Officer Twitchell the

government sought to introduce the turret tape.

judge

declined to allow the tape at that time, but indicated

that cross examination of

tape

The district

admissible

as

Officer Twitchell could render the

a Rule

801(d)(1)(B)

prior

consistent

statement. During cross examination, Young's counsel elicited

testimony from Officer Twitchell

of

the firearm,

Officer Fee saw

he

had never

that, prior to his recovery

broadcast

(a) that

a gun in Young's waistband, and

he

and

(b) that he

had seen Young throw the handgun during the pursuit.

The

defense counsel

government argued that through those questions

implied

seeing Young possess the

that Officer

Twitchell

fabricated

gun, and moved on redirect

to play

the

turret tape

testimony.

throw

as a

Officer

prior statement

consistent

with his

Twitchell testified

that he

saw Young

the gun, and on the tape, states the same observation.

The district court found

her

that defense counsel, regardless of

intent, had elicited testimony from which the jury could

infer that

Officer Twitchell fabricated his

accordingly, admitted

the tape under Rule

testimony, and,

801(d)(1)(B).

We

cannot conclude that the lower court abused its discretion.

Despite defense

counsel's insistence that

she did

not intend to imply fabrication, the district judge correctly

-1515

ruled

on the basis of the possible inferences the jury could

make as a result of the question.

See Piva, 870 F.2d at 759

___ ____

(evaluating charge of fabrication on basis of what jury could

infer).

Moreover,

error in finding

the district judge

that as

jury could have concluded

a result of

did not commit

clear

cross examination,

that Officer Twitchell neither saw

Young with a gun in his waistband, nor saw Young throw a gun.

Defense

counsel's

questioning

implied

fabrication

by

highlighting

that Officer Twitchell

never broadcast that he

saw a gun in

Young's waistband, and that he

never broadcast

that he saw Young throw the gun until after Officer Twitchell

recovered

the gun.

inferred that

Young

His

a jury

statement on the

testimony on direct

throw

terms,

if Officer Twitchell did not

did not happen.

with his

In simple

the

gun,

and,

could

broadcast it, it

tape was

examination that

therefore,

have

was

consistent

he had

seen

appropriately

admitted as a prior statement consistent with that testimony.

Young points

directly

out that

contradicts the

nothing in the

testimony

elicited

turret tape

during

cross

examination, that Officer Twitchell did not broadcast that he

saw Young throw a gun until

do

not dispute

the truth

after he recovered it.

of Young's

assertion, we

While we

do not

ascribe

requires

similar significance

the prior

testimony; the

to it.

consistent

prior consistent

Nothing

statement to

statement

in the

rule

contradict any

must merely

"be

-1616

offered to rebut a charge or implied charge of fabrication."

__________________

Fed. R.

Evid. 801(d)(1)(B) (emphasis added).

without

clearly erring,

could

permit the

judge did

tape

as

jury

not abuse his

that defense

to infer

Having found,

counsel's questioning

fabrication, the

discretion in admitting

Rule 801(d)(1)(B)

prior

district

the turret

consistent

statement,

offered to rebut that implied charge.

The district judge

the

order

entire turret

tape, "in

allowed the government to

order to

set the

context, in

to understand the timing of what was going on."

contends that

even if one of

play

Young

Officer Twitchell's statements

constitutes a prior consistent

statement, the tape

contains

additional statements of Officer Twitchell and others that do

not

fall within

that category,

inadmissible hearsay.

and, therefore,

constitute

At

counsel to

playing

sidebar

the

district

offer redactions

the tape

to the

object specifically

invited

defense

for his consideration

jury.

Defense counsel

offer specific, cognizable redactions,

to

judge

to those

prior to

failed to

failed on the

portions

of the

record

tape she

found objectionable, and to explain to the district judge why

they

did

not

constitute

prior

consistent

statements.

Accordingly, Young may not now raise this argument on appeal.

See Piva, 870

___ ____

F.2d at

759 (lack of

-1717

specific objections

at

trial

precludes

appeal).3

party

from

raising

specific

issue

on

In any event, having reviewed the contents of the

tape, we cannot

conclude that the district

judge abused his

discretion in admitting the entire tape and playing it to the

jury.4

C. Use of Transcripts of the Turret Tape

_________________________________________

The district

judge also allowed the

government to

provide

a transcript

tape.

By way

government

sent the

the

to aid

the jury

in listening

of background, we digress

prepared the

tape to

transcript.

to the

to explain how the

The

government first

a transcribing company,

which transcribed

tape to the best of its ability, given its unfamiliarity

with police

jargon, names

transpired

that particular

and

codes, and

evening.

the events

that

The government

then

allowed each participant to review the transcript independent

____________________

3.

In Piva,
____

under

Rule

the district
801(d)(1)(B)

judge admitted a
over

objection.

870 F.2d at 759.

reason why

Rule 801(d)(1)(B)

made

hearsay

rehabilitation.

objection
See
___

id.
___

specificity precluded raising

prior statement

counsel's

general

hearsay

Rather than point to a specific

did not apply,
and
We held

also

counsel merely

argued

that counsel's

a specific

improper
lack of

challenge to

801(d)(1)(B) applicability for the first time on appeal.

Rule
See

___
id.
___

4.

With respect to the

argument
(1996)

based
either

on Tome
____
at

trial

Turret tape, Young did not

v. United States,
______________
or now

unmindful, however, of the Supreme

on

116 S.

appeal.

raise an
Ct. 696

We are

not

Court's recent admonition

that to be admissible, a prior consistent statement must have

been

made before the alleged motive to fabricate arose.

at 700.

In

light of the nearly contemporaneous

the gun

and Officer Twitchell's broadcast,

recovery of

we are satisfied

that this case does not present us with a Tome issue.

____

-1818

Id.
___

of one another, in order to attempt to fill in those portions

the transcribing company could not determine.

then

sent the

revised transcript

back to

The government

the transcribing

company, which then reviewed it while listening to the

tape,

in order to validate the corrections.

The government informed the court of this procedure

at

the

hearing on

introduced

the

tape

Young's

at

motion

trial,

specifically eliciting Officer

assisted in the

preparation of

district judge

offered defense

replay the

to

and

suppress,

before

the

when

it

jury

by

Twitchell's testimony that he

the final

counsel

tape with an alternative

transcript.

The

the opportunity

to

transcript, and allowed

significant time and latitude on cross examination of Officer

Twitchell about

the government's transcript and

its preparation.

his role in

Defense counsel, however, failed to utilize

any alternative transcript, or even the original draft of the

transcript,

to

inconsistencies, or

point

out

potential

simply to offer the

inaccuracies

or

jury an alternative

view of the contents of the tape.

In

this circuit we

have long approved

the use of

properly authenticated transcripts of tape recordings for the

purpose of

helping the

recordings themselves.

F.2d

jury

See
___

listen to

and understand

United States v.
_____________

the

Campbell, 874
________

838, 849 (1st Cir. 1989); United States v. Rengifo, 789

_____________
_______

F.2d 975, 980 (1st

Cir. 1986) (citing cases).

The district

-1919

judge

may even allow the jury to have the transcripts during

deliberations provided "the court makes clear that the tapes,

not

the

transcript

Rengifo, 789
_______

600

F.2d 286,

constitute

evidence

in

the

case."

F.2d at 980 (quoting United States v. Richman,

______________
_______

295 (1st

Cir. 1979)).

Prior to

trial, the

district judge

transcript;

should attempt to obtain

failing that,

however, the

a single stipulated

court should

each party to introduce its

own transcript of the

upon proper authentication.

See id. at 983.

___ ___

In addition,

when "a defendant

allow

recording

has possession

of

the transcript and tape prior to trial and raises no pretrial

objection, the district court is not obliged to interrupt the

trial

to screen the transcript for accuracy prior to its use

by the jury."

(1st

Cir.

Instead,

United States v. Font-Ramirez, 944 F.2d 42, 48

_____________
____________

1991),

cert.
_____

denied,
______

502

U.S.

1065

(1992).

the district court may simply listen to the tape as

it is played for the jury, follow the transcript, and rule on

specific

objections

as

defendant fail to offer

they arise.

See
___

id.
___

Should

specific objections during

playback

of the tape, or offer an alternative transcript, the district

court does not abuse

use the transcript.

Our

review

its discretion by allowing the

See id.
___ ___

of

the

record reveals

no

abuse

discretion in the use of the government's transcript

case.

At the

jury to

outset we

note that

-2020

Young does

of

in this

not dispute

proper authentication.

hear

the tape with the

district judge

and

not the

determining that the jury could

aid of the

disputed transcript, the

gave the requisite instruction

transcripts constituted

should consider.

to

Upon

The

the evidence

(once

from the

tape.

judge instructs jury

that they could not

See Campbell,
___ ________

that tape and

874 F.2d

that he would

at 849

not transcript is

evidence, we review for abuse of discretion).

instructed the jury

the jury

judge specifically instructed the jury

disregard anything in the transcript

understand

that the tape

The judge also

allow defense counsel

to

play the tape again

with a different transcript, "to

see if

you hear something different from what you might have thought

you heard when it was played with the other transcript before

you." The

judge reiterated this

instruction as part

of his

final instructions while charging the jury.5

In

reflects

addition to

the

defense

counsel

that

events at

trial, the

possessed

copies

record

of

the

government's transcripts before trial, but raised no pretrial

____________________

5.

Young also

asserts that by reviewing

helping

to fill

company

found

opportunity
after
States,
______

consistent

some of

unintelligible,

to create

a motive
115

in

S.

to
Ct.

his own

the portions
Officer

statement must

the transcribing

Twitchell

prior consistent

fabricate arose.
696, 700

the transcript and

(1995)

have been

had

the

statements

See Tome
___ ____

v.

United
______

(holding

that prior

made before

motive to

fabricate arose in

order to

be admissible).

that, as

the district judge

evidence

consisted of the tape

indicated, defense
an

alternative

We note

twice instructed the

and not the

transcript,

or

to

jury, the

transcript.

counsel had ample opportunity

impeach

only

As

to present

the transcript

through cross examination of Officer Twitchell.

-2121

objections specific to either of them.

objected to the revised

While defense counsel

transcript at trial on the

basis of

alleged

inaccuracies, she

during

playback

alternative

of

basis

the

transcript,

clearly indicated he

neither made

tape,

even

in

transcript.6

district

though

would permit

we cannot conclude that

discretion

nor

allowing the

specific objections

chose

the

her to

to

offer

district

do so.

On

an

judge

that

the district court abused its

jury

to

use the

government's

See Font-Ramirez, 944 F.2d at 48 (holding that

___ ____________

court

does

transcript in absence

not

abuse

discretion

of specific objections

by

allowing

or alternative

transcript).

Finally, Young argues that

had a prejudicial effect

the tape and transcript

that far outweighed their probative

value under Rule 403 of the Federal Rules of Evidence.

failed to

raise

this

objection at

trial;

we

review

Young

the

____________________

6.

Young also

use

of

challenges the admissibility of

the transcript

on

the basis

Clause

of the Sixth Amendment.

cl. 3.

Young argues

by

the tape and

of

the Confrontation

See U.S.
___

Const. amend. VI,

that the transcript contains statements

the dispatcher, who did not appear at trial as a witness.

The

Confrontation Clause

concern for the accuracy

. . by assuring
basis

Cir. 1990).

"advance

practical

of 'the truth-determining process .

the

truth of

a satisfactory

the prior

Panzardi-Lespier, 918
________________

statement.'"

F.2d 313,

319 (1st

On that basis, we have held that when an out-of-

court statement
the hearsay

to

that the trier of fact [has]

for evaluating

United States v.
______________

exists

"falls within

principle," its

Confrontation Clause.

a firmly rooted

exception to

admission does not

violate the

See id.
___ ___

Having determined that

the

turret tape constitutes a prior consistent statement, and not

hearsay,

we are satisfied that its admission did not violate

the Confrontation Clause.

-2222

district court's decision,

See
___

Cir.

therefore, only for plain

Jacques v. Clean-Up Group, Inc., 96 F.3d

_______
_____________________

1996).

rulings,

We will

moreover,

circumstances.'"

disturb a

only

in

error.

506, 516 (1st

district court's

"'extraordinarily

Rule 403

compelling

United States v. Kayne, 90 F.3d 7, 12 (1st

_____________
_____

Cir. 1996), cert. denied, __ S. Ct. __, 1997 WL 2646 (Jan. 6,

_____ ______

1997) (quoting United States v. Montas, 41 F.3d 775, 783 (1st

_____________
______

Cir. 1994), cert. denied, 115 S. Ct. 1986 (1995)).

_____ ______

such circumstances

in this

error in admission

of the

Young's Rule

403

appeal, thus fails.

Affirmed.
Affirmed
________

We see no

instance, and identify

tape and use

argument, raised

for

of the

no plain

transcript.

the first

time

on

-2323