United States v. Bartelho ( 1995 )


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    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 Attorney, ______________________
    with whom Jay P. McCloskey, United States Attorney, and Richard _________________ _______
    W. Murphy, Assistant United States Attorney, were on brief for _________
    appellee.



    ____________________

    December 5, 1995
    ____________________

















    TORRUELLA, Chief Judge. Defendant-appellant Thomas TORRUELLA, Chief Judge. ____________

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

    a firearm by a convicted felon under 18 U.S.C. 922 and 924.

    After a jury trial in 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. BACKGROUND I. BACKGROUND

    Viewed in the light most favorable to the government,

    United States v. Robles, 45 F.3d 1, 2 (1st Cir.), cert. denied, _____________ ______ ____________

    115 S. Ct. 1416 (1995), a reasonable jury could have found the

    following facts.

    At about 9:20 a.m. on Saturday, July 2, 1994, the

    Windham Police Department received a call from Lori Daigle

    ("Daigle"), the resident of the first floor apartment in a two-

    unit residence on Route 115 in Windham. Daigle reported an

    ongoing disturbance in the upstairs unit. Bartelho, who lived

    with his girlfriend Patricia Harris ("Harris") and their two

    young children, rented that apartment (the "Harris-Bartelho

    apartment"). Daigle stated to 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. Furthermore, Daigle reported that Harris

    expressed fear for her 18-month-old child, and that "Tommy" had

    chased her down the road with a loaded rifle. Daigle also




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    explained to the dispatcher that she had not heard the boyfriend

    leave, and so he must still have been upstairs.

    Four Windham police officers were dispatched to the

    scene. Meanwhile, dispatcher John Perruzzi tried to reach Harris

    by phone in the Harris-Bartelho apartment. Finding the line

    busy, he had the phone company break in, and upon reaching

    Harris, convinced her to walk out of the building to talk with

    the officers waiting outside.

    Harris spoke to Sergeant David Thomas and Officer

    Raymond Williams. Officer Williams told Harris that the police

    were responding to a report that she had been assaulted and

    threatened with a firearm. Harris answered that she had had an

    argument with her boyfriend but that he had left 30 minutes

    previously. The officers observed that Harris' eyes were puffy,

    that she appeared nervous, and that she would not make eye

    contact with them. In accord with their domestic violence

    training, the officers concluded that Harris was protecting

    Bartelho, possibly out of fear of reprisal. In view of Daigle's

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

    for her permission to enter the Harris-Bartelho apartment, which

    she denied.

    Sergeant Thomas then told Harris that the officers

    would enter the apartment without her permission. Several

    factors persuaded the officers to conduct a warrantless search,

    including their belief that Harris was lying to protect Bartelho,

    Daigle's statement that Bartelho remained in the apartment, the


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    fact that Route 115 is a busy highway where the town's Fourth of

    July parade was about to begin, and the presence of other

    dwellings nearby. As they later 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 Williams and Sergeant Thomas climbed the

    stairway that led to the Harris-Bartelho apartment's 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 the ground level constituted a

    second escape route from the apartment. Officers on the ground

    watched both exits as the search took place. After Sergeant

    Thomas and Officer Williams failed to find the suspect in the

    apartment, Officer Williams checked the back porch more

    carefully, and noticed a loaded semiautomatic rifle on top of a

    stove on the porch. Officer Williams looked down the porch

    stairway, and called out the name "Tommy," whereupon Thomas

    Bartelho emerged from his hiding place below.

    On July 6, 1994, a warrant was executed authorizing a

    search of the Bartelho-Harris apartment for evidence of bank

    robbery. Part of the basis for the warrant was the FBI's belief

    that the weapon found during the earlier, warrantless search

    ("the July 2 search") was the same as the one that had been used

    in a series of bank robberies. Pursuant to the warrant, another

    search was conducted on July 7 ("the July 7 search"), which




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    turned up additional items including a quantity of ammunition and

    a stock and case for a rifle.


















































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    II. DISCUSSION II. DISCUSSION

    On appeal, Bartelho contends that four issues require

    that we overturn his conviction. First, he argues that the

    government failed to prove that his firearm civil rights had not

    been restored, as he asserts it was required to do. Second, he

    contends that the district court wrongly denied his motion to

    suppress evidence found during the July 2 and July 7 searches.

    Third, he claims that the district court's jury procedures were

    improper. Fourth, and finally, he asserts that the district

    court erred in allowing testimony that he threatened to kill

    Harris.

    A. Restoration of Felon Firearm Civil Rights A. 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 last conviction before the instant

    crime was in 1990, when he served one year of a five-year prison

    sentence. As noted in the facts, the police discovered a

    semiautomatic rifle during their search of the Harris-Bartelho

    apartment in close proximity to the place where they also

    discovered defendant-appellant Bartelho, and at trial the

    government presented Harris' taped pretrial statement that

    Bartelho had threatened her while holding this weapon.

    According to Bartelho, the district court erred in

    denying his motion to dismiss, which contended (1) that the


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    government was required to prove that his right to bear arms had

    not been restored by the State of Rhode Island, and (2) that the

    government failed to carry this purported burden. Bartelho

    reiterates this argument on appeal. The argument depends on his

    interpretation of 18 U.S.C. 921(a)(20) (1994), which defines

    the term "crime punishable by imprisonment for a term exceeding

    one year" in 922(g)(1) as follows:

    What constitutes a conviction of such
    a crime shall be determined in accordance
    with the law of the jurisdiction in which
    the proceedings were held. Any
    conviction which has been expunged, or
    set aside or for which a person has been
    pardoned or has had civil rights restored
    shall not be considered a conviction for
    purposes of this chapter, unless such
    pardon, expungement, or restoration of
    civil rights expressly provides that the
    person may not ship, transport, possess,
    or receive firearms.

    Bartelho argues that because Rhode Island has provided for

    possible restoration of his civil right to carry a firearm, to

    convict him under 922(g)(1), the government bears the burden of

    showing that 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 922(g) violation. In United States v. _____________

    Ramos, 961 F.2d 1003, 1006 (1st Cir. 1992), we read 922(a)(1) _____

    to require proof of three elements:

    (1)that the accused is a convicted felon;
    (2)who knowingly possessed a firearm;

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    (3)which was connected with interstate
    commerce.

    Id. at 1006; see also United States v. Flower, 29 F.3d 530, 534 __ ________ ______________ ______

    (10th Cir. 1994) (citing United States v. Shunk, 881 F.2d 917, ______________ _____

    921 (10th Cir. 1989)); United States v. Sherbondy, 865 F.2d 996, _____________ _________

    1001-03 (9th Cir. 1988).

    While neither 921(a)(20) nor 922(g)(1) explicitly

    describes the role that the 921(a)(20) definition should play

    or specifies who must initially raise or ultimately bear the

    burden of proof on the issue of the predicate conviction's

    continuing vitality, we conclude that 921(a)(20) is merely a

    legal definition for the phrase "conviction for a term exceeding

    one year" in 922(g)(1). Indeed, the title to 18 U.S.C. 921

    is "Definitions." Furthermore, 921(a)(20) begins with the

    words "[t]he term 'crime punishable by imprisonment for a term

    exceeding one year' does not include," and is followed by two

    exceptions. Thus, 921(a)(20) serves to narrow the class of

    prior convictions down to a smaller class of convictions that may

    serve as predicate convictions under 922(g)(1). To treat

    921(a)(20) as a legal definition accords with the approaches

    taken explicitly by two other circuits, see United States v. ___ _____________

    Jackson, 57 F.3d 1012, 1016 (11th Cir. 1995); Flower, 29 F.3d at _______ ______

    534; United States v. Clark, 993 F.2d 402, 406 (4th Cir. 1993), _____________ _____

    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 ____________



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    L.Ed.2d 426 (1993); United States v. Cassidy, 889 F.2d 543, 545 ______________ _______

    (6th Cir. 1990).

    We are persuaded by the approach of United States v. ______________

    Flower. The significance of 921(a)(20)'s definitional nature ______

    is that the trial judge bears the responsibility of determining

    as a matter of law whether a prior conviction is admissible in a

    922(g)(1) case. Flower, 29 F.3d at 535. Under Bartelho's ______

    proposed rule, the government would be required to refute every

    possibility that criminal defendants have had their prior

    convictions nullified or their civil rights restored. Rather

    than require the government to show a negative proposition, we

    reject Bartelho's interpretation. It is certainly much easier

    for criminal defendants to raise the issue of whether their prior

    convictions have been nullified or their civil rights otherwise

    restored. Id.1 __
    ____________________

    1 We note in passing that the only circuit to have held that the
    government must prove the "continuing validity" of a defendant's
    previous conviction, United States v. Essick, 935 F.2d 28, 31 _____________ ______
    (4th Cir. 1991), has recently clarified, and limited, their
    previous conclusion in a manner instructive for the present case.
    See United States v. Thomas, 52 F.3d 82, 85 (4th Cir. 1995); see ___ _____________ ______ ___
    also United States v. Clark, 993 F.2d 402, 406 (4th Cir. 1993). ____ _____________ _____
    In Thomas, the court limited Essick's holding, by ruling that it ______ ______
    did not apply to circumstances where the underlying state law
    automatic restoration provision could not normally have taken
    effect because the defendant had a prior conviction falling
    within the statutorily prescribed period. Thomas, 52 F.3d at 85. ______
    Bartelho urges that we follow Essick and adopt its original ______
    holding. But Essick has been limited by the court that issued ______
    it, and in such a manner that would not benefit Bartelho.
    Bartelho was most recently convicted only four years before the
    instant offense; Rhode Island law requires that ten years must
    pass after completion of a conviction before a defendant can
    initiate the expungement process by which Bartelho's civil right
    to carry a firearm could have been restored. See R.I. Gen. Laws ___
    12-1.3-2(a), 12-1.3-3(b)(1) (1956). Furthermore, while

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    A claim of restoration of civil rights is in the nature

    of an affirmative defense. As a result, once a prior felony

    conviction and corresponding loss of civil rights is proven by

    the government, as with any other factual condition, the

    presumption is that that condition remains. See Jackson, 57 F.3d ___ _______

    at 1016 ("[W]here affirmative defenses are created through

    statutory exceptions, the ultimate burden of persuasion remains

    with the prosecution, but the defendant has the burden of going

    forward with sufficient evidence to raise the exception as an

    issue.") (quoting United States v. Laroche, 723 F.2d 1541, 1543 _____________ _______

    (11th Cir.), cert. denied, 467 U.S. 1245 (1984)). It is up to ____________

    the defendant to raise the issue and produce evidence showing

    that changed circumstances make the original condition

    inapplicable. See Jackson, 57 F.3d at 1017; Flower, 29 F.3d at ___ _______ ______

    535. Defendant has not done so here.

    Thus, upon de novo review, see, e.g., United States v. __ ____ ___ ___ _____________

    Three Juveniles, 61 F.3d 86, 87 (1st Cir. 1995) (reviewing de _______________ __

    novo issues of interpretation of federal criminal statute), we _____

    find no error of law, since the government was not required to

    show the validity of his past conviction in order to prove a

    violation of 922(g)(1).

    B. The Motion to Suppress B. The Motion to Suppress
    ____________________

    Bartelho contends that the government was required to show that
    he had not been pardoned, see R.I. Const. art. IX, 13, and ___
    thereby had his civil rights restored, he cites no authority for
    this proposition other than Essick, which as noted above, ______
    actually involved an automatic restoration provision, not a
    discretionary expungement or pardon. At any rate, we decline to
    adopt the rule that Bartelho proposes.

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    With respect to the motion to suppress, we review a

    district court's findings of fact only for clear error. United ______

    States v. Mart nez-Molina, 64 F.3d 719, 726 (1st Cir. 1995). ______ _______________

    Questions of law, however, are subject to de novo 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 the July 2 warrantless search and the July 7

    search, which he contended was tainted by the use of July 2-

    obtained evidence to procure the warrant used. Based on the

    facts presented at the evidentiary hearing, the magistrate judge

    recommended that the district court deny Bartelho's suppression

    motion, and the district court did so. The district court found

    that (1) the officers had probable cause to believe that

    contraband or evidence would be found inside, and (2) exigent

    circumstances justified their entry without first obtaining a

    warrant.

    On appeal, Bartelho argues that the district court

    erred by ruling that the July 2 search and subsequent seizures

    were constitutionally protected. He contends that the evidence

    found in the July 2 search should be excluded because the police

    did not have probable cause to enter the apartment, and that

    there were no "exigent circumstances" to excuse their lack of a

    warrant. Furthermore, he argues that evidence gathered in the

    July 7 search constitutes "fruit of the poisonous tree" and

    should also be suppressed. See Wong Sun v. United States, 371 ___ ________ _____________

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


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    First, we address Bartelho's contention that there was

    insufficient probable cause to support the officers' entrance

    into the Harris-Bartelho apartment. Probable cause to conduct a

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

    probability that contraband or evidence will be found in the

    place described." United States v. Moore, 790 F.2d 13, 15 (1st _____________ _____

    Cir. 1986), cited in United States v. Wilson, 36 F.3d 205, 208 ________ _____________ ______

    (1st Cir. 1994). The determination of probable cause is to be

    made by evaluating the totality of the circumstances facing the

    police. See Illinois v. Gates, 462 U.S. 213, 238 (1983); United ___ ________ _____ ______

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

    Bartelho argues that the police should not have been

    allowed to rely on Daigle's statement that he was still in the

    Harris-Bartelho apartment. He argues that because Daigle was in

    her apartment together with small children, she could not have

    known whether he had left via the back stairs, which were

    detached from the building and enclosed. Furthermore, Bartelho

    cites Harris' statement to the police that he was not in the

    building as evidence that they did not have probable cause.

    Bartelho's arguments are not persuasive. The district

    court was not required to accept the contention that the

    placement of the back staircase made it impossible for Daigle to

    know if Bartelho had left. The officers testified that Daigle

    was adamant that Bartelho was still there. Furthermore, the

    officers were not required to take Harris' statement at face

    value, especially given their domestic-abuse training. See, ___


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    e.g., United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993) ___ ______________ ______

    (weighing officers' experience in determination of probable

    cause); see also United States v. Henry, 48 F.3d 1282, 1284-85 ________ _____________ _____

    (D.C. Cir. 1995) (upholding protective sweep despite the fact

    that girlfriend told police her boyfriend had left). We conclude

    that the evidence regarding the totality of the circumstances

    supported the district court's conclusion that probable cause

    existed for the police to believe Bartelho was still present in

    the apartment, and we find no clear error. See United States v. ___ _____________

    Wilson, 36 F.3d 205, 209 (1st Cir. 1994) (reviewing district ______

    court's factual findings, especially witness credibility

    determinations, for 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 a

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

    circumstances." Moore, 790 F.2d at 15; see also Wilson, 36 F.3d _____ ________ ______

    at 208. 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 obtaining a warrant." Wilson, 36 F.3d ______

    205, 209 (1st Cir. 1994) (quoting United States v. Adams, 621 _____________ _____

    F.2d 41, 44 (1st Cir. 1980)); see also Hegarty v. Somerset _________ _______ ________


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    County, 53 F.3d 1367, 1374 (1st Cir. 1995). This necessarily ______

    fact-based inquiry, Wilson, 36 F.3d at 209, requires that we ______

    consider factors including the gravity of the underlying offense,

    whether a delay would pose a threat to police or the public

    safety, and whether there is a great likelihood 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 contends that the district court erred in

    finding that exigent circumstances justified the officers'

    warrantless search. In particular, he emphasizes that John

    Perruzzi, the dispatcher, found the telephone line busy when he

    called; that Harris had already exited the building when the

    officers arrived; and that she provided no confirmation of an

    assault, the existence of a firearm, or Bartelho's presence

    inside the Harris-Bartelho apartment. According to Bartelho,

    these facts rebut the district court's finding that requisite

    exigent circumstances existed.

    The facts that Bartelho cites do not compel a finding

    that exigent circumstances did not exist. Bartelho tries to

    argue that Perruzzi interrupted Harris in the middle of a phone

    call, and so the police should have decided that all was well.

    However, we must review evidence as a whole, including all

    reasonable inferences, in the light most favorable to the

    government. See, e.g., United States v. Robles, 45 F.3d 1, 2 ___ ___ _____________ ______

    (1st Cir. 1994), cert. denied, 114 S. Ct. 731, 126 L. Ed. 2d 694 ____________


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    (1994). A busy signal would be consistent not only with the

    possibility that Harris was making a phone call, but also with

    the reasonable inference that Bartelho had taken the phone off

    the hook. 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 conclude that the district court did not err in

    finding the requisite exigent circumstances. Several facts

    address the reasons that this court has previously emphasized in

    determining whether exigent circumstances exist. The police were

    summoned by a caller who identified herself, lending credibility

    to the report, and reported that a woman was being threatened by

    a man with a loaded rifle, certainly a grave offense. See 17-A ___

    M.R.S.A. 1252(4) (1983 & Supp. 1994) (increasing penalties for

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

    at 26 (considering presence of a firearm used in assault as a

    factor in upholding warrantless search). Other facts suggest

    that delay would have risked public safety. The scene was near a

    busy highway that was on the route of a soon-to-begin Fourth of

    July parade. Besides the parade, there were also other dwellings

    nearby. Furthermore, Bartelho may well have known from Harris'

    conversation with the dispatcher, or from looking outside, that

    the police were waiting for him. By waiting, the police may have

    risked an ambush. See United States v. L pez, 989 F.2d 24, 26 ___ ______________ _____

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


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    own safety). Moreover, any normal delay in obtaining a warrant

    might have been exacerbated by the holiday. Guided in our

    inquiry by this court's previously adopted rubric, these facts

    lead us to uphold the district court's finding of 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. Jury Procedures C. Jury Procedures

    Bartelho also argues that the district court erred by

    refusing to discharge the jury panel after another case's

    indictment, involving the same model of firearm and an identical

    witness, had already been read to the panel during voir dire and

    jury selection. According to Bartelho, these facts may have led

    the jury to associate him with the defendant who faced an

    unrelated trial on a more serious charge. 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 on challenges therefor." Dennis v. United States, ______ _____________

    339 U.S. 162, 168 (1950); see also Kotler v. American Tobacco ________ ______ _________________

    Co., 926 F.2d 1217, 1228 (1st Cir. 1990) (in absence of manifest ___

    juror prejudice, "we will not set aside a judge's actions in

    empaneling a jury which [the judge] reasonably considers to be

    suitable and impartial"). We review a trial judge's exercise of

    discretion in empaneling a jury for "clear abuse." See, e.g., ___ ___


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    United States v. McCarthy, 961 F.2d 972, 976 (1st Cir. 1992); _____________ ________

    United States v. Ploof, 464 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. In United States v. ______________

    Carranza, 583 F.2d 25 (1st Cir. 1978), we adopted the following ________

    rule:

    unless a specific showing of bias or
    prejudice is made, the fact that a juror
    sat in a prior case involving the same
    government witnesses and the same type of
    crime will not be grounds for
    disqualification per se unless the ___ __
    defendant is charged with an offense
    arising from the same transaction.

    Id. at 28. Here, Bartelho has not made a specific showing of ___

    bias or prejudice. Furthermore, unlike in Carranza, his jurors ________

    neither heard the witnesses nor saw the evidence against the

    other defendant. Additionally, Bartelho's charge (being a felon-

    in-possession) and the other relevant defendant's charge (bank

    robbery) were not the same type of crime. Finally, the

    similarities between Bartelho's case and the one with which his

    jury was empaneled are insufficient. See, e.g., United States v. ___ ___ _____________

    Morales-D az, 925 F.2d 535, 537 (1st Cir. 1991) (rejecting ____________

    argument of bias based on several jurors' prior service in a

    different case involving another Hispanic drug defendant). Thus,

    Bartelho has considerably less basis for an allegation of

    prejudice than the defendant in Carranza, who also failed to ________

    persuade this court. We note in passing that this court has

    previously emphasized the importance of caution under the

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    Carranza rule in addressing challenges that threaten the judicial ________

    economy of multiple empanelment based on the negligible adverse

    effects of this system when 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.










































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    D. Harris' Testimony on Bartelho's Death Threats D. Harris' Testimony on Bartelho's Death Threats

    Lastly, Bartelho challenges the district court's

    decision to allow Harris to testify that Bartelho had threatened

    to kill her. On relevance grounds, Bartelho objected to the

    government's questioning of Harris on redirect regarding whether

    Bartelho had threatened to kill her, but the court allowed the

    testimony. Citing Federal Rule of Evidence 403,2 Bartelho

    argues that although the death threat may have been relevant as

    to motive, such testimony was highly inflammatory and

    prejudicial. He contends that this testimony thereby increased

    the likelihood of a conviction based on emotion rather than

    facts, thus denying him of a fair trial.

    The balancing of probative value against prejudicial

    impact under Rule 403 will not be disturbed on appeal as long as

    the trial court "does not stray entirely beyond the pale."

    United States v. Rodr guez-Estrada, 877 F.2d 153, 156 (1st Cir. _____________ _________________

    1989) (quoting United States v. Tierney, 760 F.2d 382, 388 (1st _____________ _______

    Cir. 1985)). We review the trial court's ruling only 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 It is not entirely clear from the record that a Rule 403 issue
    has been preserved for appeal. The government contends that
    Bartelho tacitly waived a Rule 403 objection via his later
    objections. Nonetheless, the ambiguity is irrelevant here, since
    we do not consider the issue of waiver, as Bartelho's argument
    fails on other grounds.

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    We uphold the district court's decision to allow the

    testimony. Harris was the only government witness who could

    testify that Bartelho actually had physical possession of the

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

    recorded on tape. However, at trial she denied that Bartelho had

    had a gun. Given that she was the best witness to one of the

    elements of the crime of felon-in-possession, evidence that

    Bartelho had previously threatened her life was highly relevant

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

    facts or her conflicting trial testimony. Furthermore, only the

    fact that Harris told others about the threats was elicited;

    there were no sensational details. Thus, we conclude that the

    district court did not abuse its discretion in admitting the

    evidence of the threats.

    For the foregoing reasons, the judgment of the district

    court is affirmed. affirmed. ________






















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