United States v. Lovato

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 27, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 18-1468
v.
DANIEL LOVATO,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CR-00213-RM-1)
_________________________________
John C. Arceci, Assistant Federal Public Defender (Shira Kieval, Assistant Federal Public
Defender, and Virginia L. Grady, Federal Public Defendant, on the briefs), Office of the
Federal Public Defender for the Districts of Colorado and Wyoming, Denver, CO, for the
Appellant Daniel Lovato.
Paul Farley, Assistant United States Attorney (Jason R. Dunn, United States Attorney,
with him on the brief), Office of the United States Attorney for the District of Colorado,
Denver, CO, for the Appellee.
_________________________________
Before BACHARACH, KELLY, and CARSON, Circuit Judges.
_________________________________
CARSON, Circuit Judge.
_________________________________
This action arose out of the district court’s admission of a 911 call under the
present sense impression exception to the rule against hearsay. Defendant Daniel
Lovato (“Defendant”) alleges that, in doing so, the district court abused its
discretion. 1 Following admission of the 911 call, a jury convicted Defendant of two
counts of being a felon in possession of a firearm or ammunition. The district court
merged the two counts of conviction, and sentenced Defendant to 100 months’
imprisonment followed by three years of supervised release. We exercise jurisdiction
under 28 U.S.C. § 1291 and affirm Defendant’s conviction.
I.
On March 3, 2018, a man called 911 to report that he witnessed two men in a
Honda shoot at another car. The caller followed the Honda and dialed 911 within
“two to three minutes” of observing the gunfire. 2 During the approximately thirteen-
minute 911 call, the caller discussed the shooting, his continuing observations of the
Honda and its occupants, and his safety, often in response to the 911 operator’s
questions.
The caller began the call by stating that occupants of the Honda “just shot at”
another car. After providing his location, phone number, and name to the 911
operator, the caller again described his observations of the shooting less than one
minute into the call. Specifically, the caller stated that he observed two Hispanic
males in the Honda shoot at a white Durango. Less than three minutes into the call,
1
Defendant presented two collateral issues related to his sentence, both of
which the parties now agree that our recent opinions resolve.
2
In quoting the 911 call, we rely on the audio recording of the call on file.
The recording does not differ materially from the written transcript of the 911 call.
2
the caller informed the 911 operator that the shooting occurred “five or six minutes
ago.”
While the caller continued to follow the Honda, he conveyed additional
information of his observations of the Honda. The 911 operator returned the
conversation to the shooting about five minutes into the call—seven to eight minutes
after the shooting occurred. The caller responded that someone in the Honda fired
“two shots,” and provided the exact location of the shooting. Just over eight minutes
into the call, the 911 operator asked for a description of the suspects, which the caller
provided. The caller next stated that the passenger of the Honda was the shooter.
Finally, the caller observed the Honda run a red light, at which point he lost sight of
the Honda. The caller provided his address to the 911 operator and, with the Honda
then out of sight, ended the call after about thirteen minutes.
Shortly thereafter, responding police officer Levi Braun (“Officer Braun”)
located a Honda matching the caller’s description. With Officer Braun in pursuit, the
Honda slowed down and Defendant jumped out of the passenger’s side of the moving
car. Officer Braun stopped to detain Defendant, who volunteered that he had a gun
on him. Officer Braun then retrieved a .22 caliber pistol from Defendant’s
waistband, along with thirty-two rounds of .22 caliber ammunition from Defendant’s
left front pants pocket. The pistol had a spent shell casing in the chamber, which
indicated that someone recently fired the weapon. Officer Braun also located a
canister filled with more ammunition in the street near Defendant. Defendant told
3
officers that the driver of the Honda gave him the gun and ammunition, pointed a
second gun at him, and threatened to shoot him if he did not jump out of the car.
At the time of this incident, Defendant had prior felony convictions. The
government ultimately charged Defendant with three violations of the 18 U.S.C.
§ 922(g)(1) for being a felon in possession of a firearm or ammunition: one each for
possessing the .22 caliber pistol, thirty-two rounds of .22 caliber ammunition, and
canister full of additional ammunition.
At trial, Defendant objected to the admission of the 911 call on hearsay
grounds. The district court overruled the objection and admitted the 911 call into
evidence under the present sense impression exception to the rule against hearsay.
The district court concluded “that the length of the call, and the continuous
discussion is [not] such that it destroys the contemporaneousness” required to qualify
as a present sense impression. The district court based its conclusion on a finding
that the call was “essentially, a continuous conversation” about “the same continuing
event.” The government played the 911 call for the jury.
Although Defendant admitted to possessing the .22 caliber pistol and
ammunition, he raised the affirmative defense of duress caused by the driver’s threat.
Defendant further claimed that the driver was the one who shot at the other car. The
911 call contradicted significant aspects of Defendant’s testimony. The jury
4
ultimately convicted Defendant on two counts of violating 18 U.S.C. § 922(g)(1) for
possession of the .22 caliber pistol and ammunition in his pants pocket. 3
After granting Defendant’s motion to merge the two counts of conviction, the
district court sentenced Defendant to 100 months’ imprisonment. 4 The district court
also imposed a three-year term of supervised release with special conditions
following Defendant’s release from prison. Of note, the third special condition of
supervised release (“Special Condition Three”) requires Defendant to “take all
medications that are prescribed by [his] treating psychiatrist” and “cooperate with
random blood tests” to demonstrate compliance with the condition. Defendant now
appeals.
II.
Defendant contends the district court abused its discretion by admitting the
911 call over his hearsay objection. Specifically, Defendant argues the 911 call does
not qualify under the present sense impression exception to the rule against hearsay.
“We review the district court’s evidentiary rulings for an abuse of discretion,
considering the record as a whole.” United States v. Trujillo, 136 F.3d 1388, 1395
(10th Cir. 1998). “Because hearsay determinations are particularly fact and case
3
The jury acquitted on the third count of being a felon in possession of
ammunition regarding the ammunition canister.
4
Over Defendant’s objection, the district court found that Defendant had two
prior convictions for crimes of violence, and correctly calculated Defendant’s
guideline sentencing range to be 100 to 125 months based on a total offense level of
24.
5
specific, we afford heightened deference to the district court when evaluating hearsay
objections.” Id.
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” United States v. Collins, 575 F.3d 1069, 1073 (10th Cir. 2009) (quoting
Fed. R. Evid. 801(c)). Under Federal Rule of Evidence (“Rule”) 802, hearsay is
inadmissible, subject to certain exceptions. Fed. R. Evid. 802. A declarant’s
“present sense impression” qualifies as one such exception. Fed. R. Evid. 803(1).
Under Rule 803(1), “[a] statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it” is admissible
as an exception to the rule against hearsay, regardless of whether the declarant is
available as a witness. Id. “In evidence law, we generally credit the proposition that
statements about an event and made soon after perceiving that event are especially
trustworthy because ‘substantial contemporaneity of event and statement negate the
likelihood of deliberate or conscious misrepresentation.’” Navarette v. California,
572 U.S. 393, 399–400 (2014) (quoting Fed. R. Evid. 803(1) advisory committee’s
notes to 1972 proposed rules (emphasis added)). “Unsurprisingly, 911 calls that
would otherwise be inadmissible hearsay have often been admitted on those
grounds.” Id. at 400 (analogizing to the present sense impression exception in a
Fourth Amendment case). Defendant argues that: (1) the district court abused its
discretion by analyzing the 911 call as a whole and (2) the caller’s statements were
6
not sufficiently contemporaneous to qualify as present sense impressions. 5 We
address Defendant’s arguments in turn.
A.
We start by addressing the manner in which the district court considered the
admissibility of the 911 call. On this issue, we conclude that the district court
properly analyzed the 911 call as a whole because: (1) no authority requires
otherwise in this context, (2) all the statements made within the call pertain to the
same temporal event without a substantial change in circumstances, and (3) other
relevant factors support the reliability of the statements within the call.
No authority creates a blanket requirement that a court must individually
analyze each statement within a broader narrative under the present sense impression
exception. Indeed, we have affirmed the admission of entire 911 calls as present
sense impressions without requiring such a particularized inquiry. See United States
v. Allen, 235 F.3d 482, 493 (10th Cir. 2000) (concluding that a 911 tape as a whole
“was admissible as . . . a present sense impression”). Where we—or the Supreme
Court—have not recognized a novel rule or extended a principle to a materially
distinct context, it stands to reason that the district court did not abuse its discretion
in likewise declining to do so. See Sorbo v. United Parcel Serv., 432 F.3d 1169,
5
Defendant also argues that the 911 call includes speculative statements that
are not admissible as present sense impressions. Defendant imbeds this contention
within his argument that the statements lack sufficient contemporaneity because, the
argument follows that, speculation demonstrates that the caller had an opportunity for
reflection or interpretation. We will address this argument in like manner.
7
1177 (10th Cir. 2005) (reasoning that a district court does not abuse its discretion
when we “know of no authority suggesting that the district court was required” to act
in a certain manner). Even though some circumstances may require a court to
conduct a more particularized analysis—and we are certainly not saying that the
district court would have abused its discretion had it done so here—those
circumstances are not present in this case. See Williamson v. United States, 512 U.S.
594, 599 (1994) (conflicting motives for separate statements); United States v.
Jackson, 124 F.3d 607, 618 (4th Cir. 1997) (intervening event between statements).
Defendant, however, argues that Williamson requires courts to individually
analyze whether each statement within a 911 call is admissible. 512 U.S. at 599. We
acknowledge the Supreme Court has opined that the definition of a “statement” under
the hearsay rules is limited to “a single declaration or remark” and Rule 803(1) refers
to a “statement” that qualifies as present sense impression. Id. (determining in the
context of statements against interest that a court must exclude non-self-inculpatory
parts of a broader, generally self-inculpatory narrative as inadmissible hearsay). But
the principle from Williamson is readily distinguishable because it arises in the
context of self-inculpatory statements and is supported by an entirely different
rationale than at issue here. See id.
Specifically, the rationale behind separating out non-self-inculpatory
statements from self-inculpatory ones is based on credibility concerns due to a
declarant’s motivation for self-inculpation. See id. at 599–600 (observing that “[o]ne
of the most effective ways to lie is to mix falsehood with truth, especially truth that
8
seems particularly persuasive because of its self-inculpatory nature”). Motivation for
self-inculpation, however, is not at issue here because the 911 caller in this case was
a non-party observer, detached from any allegations of wrongdoing.
In this context, the district court did not need to disassociate each statement
within the call to ameliorate credibility concerns. We therefore decline to extend the
principle in Williamson to this case because the 911 caller’s status as a disinterested
observer eliminates the need to assess whether self-serving motives tainted the
credibility of individual statements within the 911 call. See id. Thus, we conclude
that the district court did not abuse its discretion solely by considering the
admissibility of the 911 call as a whole, rather than parsing each individual statement
within the call.
Next, no substantial change in circumstances occurred during the call. When a
significant, intervening event or substantial change in circumstances occurs between
statements, Rule 803(1) may require a court to treat a declarant’s statements
differently. See Jackson, 124 F.3d at 618 (observing that a witness’s statement made
after police intervened and gained control of the scene may not qualify as a present
sense impression even though earlier statements did qualify). Here, the caller
witnessed a shooting, called 911, and followed the Honda during the call with no
interruption or police intervention. The caller maintained focus on the Honda and its
occupants for the entirety of the discussion. Although the discussion shifts between
related topics, the call continually focused on an ongoing stream of observations,
which supports the admissibility of the call as a whole. See United States v. Beck,
9
122 F.3d 676, 682 (8th Cir. 1997) (indicating statements made about events that
“were part of a single, continuous event” were properly admitted under Rule 803(1)).
Finally, the factors relevant to Rule 803(1)’s trustworthiness rationale applied
to the call as a whole. “A 911 call has some features that allow for identifying and
tracing callers, and thus provide some safeguards against making false reports with
immunity.” Navarette, 572 U.S. at 400. Although the use of the 911 system alone
“does not ‘suggest that tips in 911 calls are per se reliable,’” a caller’s use of the
system mitigates some concern regarding reliability. United States v. Gaines, 918
F.3d 793, 806 (10th Cir. 2019) (Tymkovich, C.J., dissenting) (quoting Navarette, 572
U.S. at 401). 6 Other indicia of reliability are present “when the caller reveals where
he is located, jeopardizing his anonymity; does not decline to give any information,
especially identifying information; and does not seem in any hurry to make an
allegation and hang up.” Id. at 806–07 (observing when a caller does not describe
activities with precise contemporaneity, it “weakens the reliability” of the call as a
whole, but “other indicia of reliability” can make the call “fairly credible” evidence
when viewed in full context (id. at 806)).
6
To be clear, a particular credibility judgment of the declarant does not make
or prohibit a statement from being present sense impression, but the means through
which a declarant speaks can be relevant to the trustworthiness—and, therefore,
admissibility—of the statement itself. See Navarette, 572 U.S. at 397 (observing that
courts can more often rely on an attributable 911 call than an anonymous tip because
the former is more reliable evidence); see also United States v. Parker, 936 F.2d 950,
954 (7th Cir. 1991) (reasoning that the admissibility of statements under Rule 803(1)
can be “buttressed by the intrinsic reliability of the statements”).
10
Those same reliability factors apply here. The caller was not anonymous, but
rather provided his full name, phone number, and home address during the call. The
circumstances of the call, therefore, created a “disincentive for making false
allegations,” which increases the reliability of its collective statements. See Gaines,
918 F.3d at 806. These factors equally support the truthfulness of each statement
within the 911 call, which were all admissible as present sense impressions. See
Parker, 936 F.2d at 954. Accordingly, the district court did not abuse its discretion in
considering the admissibility of the 911 call as a whole because the entire call was
sufficiently reliable.
B.
Next, we must address whether the caller’s statements were sufficiently
contemporaneous to qualify as present sense impressions. In addressing this
question, we must apply the appropriate level of deference to the district court’s
consideration of case-specific facts. See United States v. Banks, 761 F.3d 1163,
1197 (10th Cir. 2014) (explaining that “we will not disturb the ruling unless it is
arbitrary, capricious, whimsical or manifestly unreasonable, or we are convinced that
the district court made a clear error of judgment or exceeded the bounds of
permissible choice”). Defendant contends that Rule 803(1) requires immediate
contemporaneity, and, even if it does not, the passage of time between the 911
caller’s observations and statements destroyed the necessary contemporaneity. We
reject these arguments. To begin with, Rule 803(1) “recognizes that in many, if not
most, instances precise contemporaneity is not possible and hence a slight lapse is
11
allowable.” Fed. R. Evid. 803(1) advisory committee’s notes to 1972 proposed rules;
see also Christopher B. Mueller & Laird C. Kirkpatrick, 4 Fed. Evid. § 8:67 (4th ed.
June 2019 Update) (commenting that a slight lapse is acceptable under Rule 803(1)
because “a small delay . . . is not enough to allow reflection, which would raise
doubts about trustworthiness”). 7 Thus, the advisory committee has specifically
addressed at least half of Defendant’s argument and reached a contrary conclusion.
Defendant’s position is also belied by the fact that courts addressing the issue
have refused to adopt a “per se rule indicating what time interval is too long under
Rule 803(1).” United States v. Hawkins, 59 F.3d 723, 730 (8th Cir. 1995) (quoting
Parker, 936 F.2d at 954), vacated and remanded on other grounds sub. nom., Hawkins
v. United States, 516 U.S. 1168 (1996). And that makes sense because “[t]he
underlying rationale of the present sense impression exception is that substantial
contemporaneity of event and statement minimizes unreliability due to defective
recollection or conscious fabrication.” Id. Thus, instead of recognizing a bright-line
rule for specific time intervals and admissibility, courts have held that “the
7
But see United States v. Rosetta, 127 F.3d 1110, at *2 (10th Cir. 1997)
(unpublished table decision) (stating that “a delay of minutes or hours between an
event and a statement bars resort to [Rule] 803(1)” in concluding that a victim’s
statement made approximately nine hours after an assault was not admissible under
the present sense impression exception, but was admissible as an excited utterance).
In other words, we suggested that an unspecified period of minutes may be too long
to preserve substantial contemporaneity under Rule 803(1). Id. Our conjecture in
Rosetta is too imprecise to provide significant guidance here beyond the conclusion
that a nine-hour delay between event and statement is too long. Moreover, we
generally disfavor the citation of orders and judgments, so Rosetta is both non-
binding and non-persuasive in this case. See 10th Cir. R. 32.1.
12
admissibility of statements under hearsay exceptions depends upon the facts of the
particular case.” United States v. Blakey, 607 F.2d 779, 785 (7th Cir. 1979),
overruled on other grounds by United States v. Harty, 930 F.2d 1257, 1263 (7th Cir.
1991). Underlying all of this is the notion that “[t]he need for deference to a trial
court ruling on a hearsay objection is particularly great because the determination of
whether certain evidence is hearsay rests heavily upon the facts of a particular case.”
United States v. Rodriguez-Pando, 841 F.2d 1014, 1018 (10th Cir. 1988).
The 911 call in this case involved statements relaying the caller’s
contemporaneous observations during his pursuit of the Honda, as well as statements
describing what the caller observed minutes earlier. Although the call lasted about
thirteen minutes in total, the caller first provided details of the shooting only three or
four minutes after observing the event. The weight of authority from other
jurisdictions counsels in favor of admitting 911 calls such as this one because such a
short delay does not give rise to much opportunity for reflection or interpretation that
could undermine the reliability of the statements. See, e.g., United States v. Davis,
577 F.3d 660, 669 (6th Cir. 2009) (stating that “it does not matter whether the [911]
call was made thirty seconds or five minutes after witnessing the event” because the
time interval did not diminish the reliability of the statements); United States v.
Shoup, 476 F.3d 38, 42–43 (1st Cir. 2007) (concluding that a district court does not
commit obvious error in admitting a 911 call where the caller dials 911 “one or two
minutes” after perceiving an event (id. at 40)); Hawkins, 59 F.3d at 730 (affirming
the admission of a 911 call placed seven minutes after an event occurred, during
13
which time the caller moved locations due to the event, because the slight delay did
not allow significant opportunity for conscious fabrication). To be sure, the caller’s
statements here are even more contemporaneous with the underlying event (the
shooting) than other statements admitted as present sense impressions. See Hawkins,
59 F.3d at 730 (concluding that seven minutes did not destroy sufficient
contemporaneity); see also Blakey, 607 F.2d at 785–86 (affirming the admission of
statements under Rule 803(1) where the interval was potentially twenty-three minutes
between event and statements when “coupled with the substantial circumstantial
evidence corroborating the statements’ accuracy”). Accordingly, the three to four-
minute delay between the shooting and first descriptive statements did not destroy the
necessary contemporaneity.
The context surrounding the 911 call in this case also supports the reliability of
the statements. Although statements about the shooting and suspects are interspersed
throughout the call, the 911 caller made the statements in a discrete period without
any break, interruption, or intervening event. See supra Part II(A) (citing Jackson,
124 F.3d at 618; Beck, 122 F.3d at 682). The facts that the 911 call began soon after
the caller observed the shooting and focused on “the same continuing event” weighs
against the adverse effect of the length of the call on sufficient contemporaneity. See
Blakey, 607 F.2d at 786 (affirming the admission of recorded statements even though
“[a] relatively large amount of conversation was recorded” because the conversation
began “soon after” the underlying event and focused on that central event). The
caller’s continued focus on the Honda and engagement with the 911 operator further
14
limited his opportunity for “defective recollection or conscious fabrication” while
providing detailed statements about the shooting. Hawkins, 59 F.3d at 730.
Defendant also takes issue with the admission of the 911 call because the
caller made several statements in response to the 911 operator’s questions.
Defendant argues that the 911 operator’s questions provided an “opportunity for
strategic modification,” which “undercuts the reliability that spontaneity insures.”
See United States v. Manfre, 368 F.3d 832, 840 (8th Cir. 2001). 8 The mere fact that
the caller made statements in response to questions, however, does not demonstrate
that the statements were a product of strategic modification outside the bounds of
Rule 803(1). See United States v. Boyce, 742 F.3d 792, 797 (7th Cir. 2014)
(observing that a caller “can still make statements without calculated narration even
if made in responses to questions”). Indeed, those facts do not materially diminish
spontaneity under the circumstances, which supports the rationale for Rule 803(1).
See Manfre, 368 F.3d at 840.
Similarly, the caller’s movement from the location of the shooting through his
pursuit of the Honda does not eliminate sufficient contemporaneity. See United
8
Defendant cites United States v. Green, 556 F.3d 151, 157 (3d Cir. 2009) in
support of his argument, but Green is distinguishable. There, law enforcement
searched, transported, and formally debriefed a confidential informant before the
informant gave a statement fifty minutes after perceiving an event. The court
reasoned that these facts “affirmatively indicate[] that [the confidential informant]
made his statement after he was expressly asked to reflect upon the events in
question, and thereby fatally disqualifies the declaration for admission as a present-
sense impression.” Id. No such law enforcement intervention or debriefing occurred
here, nor is the delay between statement and event near the fifty-minute delay that the
speaker experienced in Green. Id.
15
States v. Dean, 823 F.3d 422, 428 (8th Cir. 2016) (concluding that a “911 call and
recorded statements occurred with sufficient contemporaneity” where the caller had
time to leave an apartment in which an event took place before calling 911 to
describe the event); Hawkins, 59 F.3d at 730 (the caller traveled from an apartment to
a nearby convenience store before calling 911). The caller made his statements
regarding the catalyst of the event (the shooting) within two or three minutes of the
shooting, and while observing “the same continuing event” from behind the wheel of
his car. See supra Part II(A). Taken together, the facts demonstrate the caller made
the statements with no more than the “slight lapse” allowed by Rule 803(1) between
event and statement. Fed. R. Evid. 803(1) advisory committee’s notes to 1972
proposed rules.
Finally, the call was sufficiently reliable evidence. As discussed above, we
look to “other indicia of reliability” outside of the call itself to assess its reliability as
evidence. Gaines, 918 F.3d at 806. And “substantial circumstantial evidence
corroborating the statements’ accuracy” can justify the admittance of a call under
Rule 803(1) despite a particularly long delay between event and statement. See
Blakey, 607 F.2d at 786 (relying on such evidence to verify reliability where the
delay was up to twenty-three minutes); see also Parker, 936 F.2d at 954. After all,
“[t]he core inquiry under the rule concerns the reliability of the declarant” under the
circumstances. First State Bank of Denton v. Md. Cas. Co., 918 F.2d 38, 42 (5th Cir.
1990) (internal quotation marks and citation omitted).
16
The 911 caller in this case was a disinterested party with no known motive to
fabricate information. See id. (affirming the admission of hearsay statements
because the declarant “had little motive to lie and was relating information he had
just gathered . . . even assuming it did not meet the precise contours of [R]ule
803(1)”). The fact that Officer Braun corroborated several of the caller’s statements
in short order further adds to the statements’ reliability. 9 Even though Officer Braun
did not corroborate every detail of the caller’s statements—in fact, some peripheral
details proved erroneous 10—Defendant retained the opportunity to attack the
reliability of these statements in the presentation of his defense. The fact that the 911
recording system preserved the caller’s statements, such that “there is no uncertainty
as to the content of the declarant’s statement[s]” further supports the reliability
rationale for admitting hearsay statements under Rule 803(1). Blakey, 607 F.2d at
785. On balance, we conclude that substantial corroboration of the 911 caller’s
disinterested statements demonstrates that the statements were particularly reliable
evidence. First State Bank of Denton, 918 F.2d at 42.
Accordingly, we hold that the 911 caller’s statements qualified as present
sense impressions. The “timeline of events suggests that the caller reported the
9
Specifically, by the time Officer Braun detained Defendant, he corroborated
the caller’s statements about the Honda’s direction of travel, a distinctive feature of
the Honda, and Defendant’s appearance.
10
Specifically, the caller said the gun used in the shooting sounded like a
9mm, but Officer Braun discovered a .22 caliber pistol on Defendant’s person. The
caller also guessed that Defendant was in his twenties, but Defendant was 38 years
old at the time of the event.
17
[shooting] soon after” he perceived it and his continuing observations of the Honda
and its occupants are the “sort of contemporaneous report [that] has long been treated
as especially reliable” in evidence law. Navarette, 572 U.S. at 399. Our conclusion
is consistent with the manner in which courts have analyzed sufficient
contemporaneity under similar circumstances, and other indicia of reliability
bolstered the admissibility of the 911 call in this case. See Gaines, 918 F.3d at 804.
We therefore affirm the district court’s decision to admit the 911 call in its
entirety under the present sense impression exception to the rule against hearsay. 11
III.
Defendant contends that his prior conviction for attempted second-degree
assault in Colorado is not for a crime of violence. Defendant, however, concedes that
circuit precedent precludes both of his assertions on this point. We observe that
Defendant maintains the argument strictly for preservation purposes.
Specifically, Defendant concedes that United States v. Mendez, 924 F.3d 1122
(10th Cir. 2019) forecloses his first assertion that Colorado “attempt” is broader than
generic “attempt.” 924 F.3d at 1126 (observing that a defendant can do “no more
than offer theoretical grounds on which some conduct might constitute criminal
attempt in Colorado but not under the generic definition of the term”). Defendant
further concedes that United States v. Martinez, 602 F.3d 1166 (10th Cir. 2010)
forecloses his second assertion that Colorado attempt falls outside the ambit of
11
Because we conclude that the district court did not abuse its discretion in
admitting the 911 call, we need not reach the parties’ harmless error arguments.
18
Application Note 1 to United States Sentencing Guidelines § 4B1.2(a). 602 F.3d at
1174 (reasoning that attempting to commit a crime of violence is itself a crime of
violence). Accordingly, we affirm the district court’s sentencing calculation.
IV.
Defendant finally argues that the district court committed plain error in
ordering Special Condition Three, without making any particularized supportive
findings. Special Condition Three requires Defendant to take all medications that
may be prescribed by his psychiatrist, and to demonstrate compliance through
random blood tests. In light of our recent decision in United States v. Malone, 937
F.3d 1325, 1329 (10th Cir. 2019), the government submitted a letter pursuant to
Federal Rule of Appellate Procedure 28(j) conceding that the district court plainly
erred in imposing Special Condition Three. Accordingly, we vacate and remand on
this issue for further proceedings.
V.
For the foregoing reasons, we AFFIRM Defendant’s conviction, vacate Special
Condition Three, and REMAND for further proceedings consistent with this opinion.
19
United States v. Daniel Lovato, No. 18-1468, Bacharach, J., concurring.
I agree with the majority that the district court did not abuse its
discretion in admitting the 911 call, that the district court’s sentencing
calculation was proper, and that we should vacate Special Condition Three.
But I respectfully disagree with the majority’s conclusions that (1) the
court should analyze the 911 call as a whole and (2) we should consider
“other indicia of reliability” to determine whether the 911 call is
admissible as a present-sense impression under Fed. R. Evid. 803(1).
Majority Op. at 17.
1. The exception for present-sense impressions applies to individual
statements, not conversations.
Under the Federal Rules of Evidence, a present-sense impression is
admissible as an exception to the rule against hearsay. Fed. R. Evid. 803.
A present-sense impression is “[a] statement describing or explaining an
event or condition, made while or immediately after the declarant
perceived it.” Fed. R. Evid. 803(1). A “statement” is in turn defined as “a
person’s oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.” Fed. R. Evid. 801(a).
Under this definition, a 911 call may contain multiple statements.
Some statements may qualif y as present-sense impressions, and others may
not. But to apply these definitions, courts must separately analyze the
individual statements.
The Supreme Court required consideration of each individual
statement in Williamson v. United States, 512 U.S. 594 (1994). There the
Court wrestled with the hearsay exception for statements against interest.
See Fed. R. Evid. 804(b)(3). That exception, like the one for present-sense
impressions, applies only to a “statement.” Id. So the Court focused on the
rules’ definition of the term “statement,” holding that it refers to “a single
declaration or remark” rather than “a report or narrative.” Williamson, 512
U.S. at 599 (quoting Webster’s Third New International Dictionary 2229
(1961)). The Supreme Court then considered the principle behind the
statement-against-interest exception, explaining that “reasonable people,
even reasonable people who are not especially honest, tend not to make
self-inculpatory statements unless they believe them to be true.” Id. That
principle does not necessarily apply to every statement in a confession.
The Supreme Court thus held that the statement-against-interest exception
requires courts to separately analyze each statement to determine whether
it is self-inculpatory. Id. at 599–604.
Williamson’s reasoning likewise applies to the hearsay exception for
present-sense impressions. Just as a confession may contain statements that
are self-inculpatory and statements that are not, so too a 911 call may
contain statements that are present-sense impressions and statements that
are not.
2
The majority downplays Williamson, reasoning that the Supreme
Court was considering the hearsay exception for statements against
interest, not present-sense impressions. But the Supreme Court was
applying a definition of “statement” that applies equally to both
exceptions.
The Sixth Circuit has thus observed that “it would make little sense”
to confine Williamson to the hearsay exception for statements against
interest. United States v. Canan, 48 F.3d 954, 960 (6th Cir. 1995). For this
observation, the court reasoned that the Supreme Court was relying on a
definition of “statement” that governed all of the hearsay exceptions in
Rule 804:
Although Williamson defined the term “statement” as it applies
in the context of Rule 804(b)(3) “statements against interest,”
we think that its definition extends to the other hearsa y
exceptions delineated in Rule 804 as well. Accordingly, the term
“statement” must mean “a single declaration or remark” for
purposes of all of the hearsay rules. This determination is
consistent with the idea implicit in Rule 801(a): that there is an
overarching and uniform definition of “statement” applicable
under all of the hearsay rules. Rule 801(a) indicates that its
definition of statement covers Article VIII (Hearsay) of the
Federal Rules of Evidence, entirely. It would make little sense
for the same defined term to have disparate meanings throughout
the various subdivisions of the hearsay rules.
Id. This reasoning applies here, compelling us to use Williamson’s
definition of a “statement” when considering present-sense impressions.
Other courts have also applied the exception for present-sense
impressions to each individual statement rather than collectively to an
3
entire conversation or narrative. For example, the Second Circuit parsed
individual statements in a 911 call:
We conclude that the 911 tape, or at least the portion in which
the caller states that the light-skinned black men in front of the
bar are shooting-the crucial issue in [the petitioner’s] trial-was
not shown by the People to be a report of a present sense
impression and thus did not fall within the exception for that
class of hearsay.
Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004). So too did a Maryland
appellate court:
The second [911] call . . . consisted of nine statements by the
declarant. The first was legitimately a Present Sense Impression.
The other eight were not. . . . The remaining eight statements
consisted largely of a question and answer exchange between the
declarant and the officer taking the call, as the declarant narrated
past events in order to bring the officer up to date. “There was a
shooting.” “They’re looking for a gun.” “[I]t was two guys. They
threw it, more like buried it[.]” None of these is remotely a
Present Sense Impression. . . . [The calls at issue] illustrate . . .
how easy it is for a seemingly simple declaration to wander
randomly back and forth between present impression and past
narration.
Morten v. State, 215 A.3d 846, 858 (Md. Ct. Spec. App. 2019).
Until now, our court has never held that a district court can apply a
hearsay exception to an entire conversation. The majority points to United
States v. Allen, where we concluded that the tape of a 911 call was
admissible as a present-sense impression. 235 F.3d 482, 493 (10th Cir.
2000). As the majority points out, the Allen panel didn’t separately discuss
the individual statements. But the defendant had not challenged the
admission of specific statements. The defendant instead argued that the
4
entire call was inadmissible because it was cumulative and the declarant
was biased. See United States v. Allen, No. 99-3236, Appellant’s Opening
Br. at 32–33. We thus had no occasion to separately analyze specific
statements made during the 911 call. And a precedent like Allen cannot be
interpreted to include holdings on issues that were neither raised nor
decided. E.g., MODOC Lassen Indian Hous. Auth. v. U.S. Dep’t of Hous. &
Urban Dev., 881 F.3d 1181, 1191 (10th Cir. 2017). The majority’s
approach is thus unsupported by precedent.
This approach appears difficult to apply. Under the majority’s
approach, it is unclear when a district court should analyze an entire 911
call as a single statement or separately analyze each individual statement. I
fear that district courts will now struggle with how to apply the
straightforward definition of “statement” set forth in the Federal Rules of
Evidence.
Rather than foist this struggle onto district courts, I would consider
each challenged statement in the 911 call to determine whether the district
court erred in finding a present-sense impression.
2. A separate reliability inquiry is not required.
The majority discusses the caller’s reliability, considering factors not
directly related to contemporaneousness. For example, the majority notes
that the caller was not anonymous and that “the circumstances of the call
. . . created a ‘disincentive for making false allegations.’” Majority Op. at
5
11 (quoting United States v. Gaines, 918 F.3d 793, 806 (10th Cir. 2019)
(Tymkovich, C.J., dissenting)); see also Majority Op. at 9 (noting “the 911
caller’s status as a disinterested observer”).
In my view, however, the exception for present-sense impressions
contains no separate requirement of reliability. The hearsay exceptions
themselves are designed to assure reliability. See Fed. R. Evid. 803
advisory committee’s note to 1972 proposed rules (“The present rule
proceeds upon the theory that under appropriate circumstances a hearsay
statement may possess circumstantial guarantees of trustworthiness
sufficient to justify nonproduction of the declarant in person at the trial
even though he may be available.”). For example, the exception for
present-sense impressions requires temporal proximity, which itself serves
as a proxy for reliability. See United States v. Green, 556 F.3d 151, 155–
56 (3d Cir. 2009) (observing that contemporaneousness “is the effective
proxy for the reliability of the substance of the declaration” under the
exception for present-sense impressions); see also United States v. Ruiz,
249 F.3d 643, 647 (7th Cir. 2001) (“[C]ourts sometimes focus on the
corroboration or the lack thereof in admitting or excluding present sense
impressions, but the truth is that the rule does not condition admissibility
on the availability of corroboration.” (citation omitted)). So I respectfully
disagree with the majority’s view that a caller’s reliability bears on
6
admissibility under the exception for present-sense impressions. 1 See
Edward J. Imwinkelried, The Need to Resurrect the Present Sense
Impression Hearsay Exception: A Relapse in Hearsay Policy, 52 How. L.J.
319, 350 (2009) (explaining that unlike some state statutes, the federal
present-sense exception “does not purport to grant the judge discretionary
authority to exclude otherwise admissible statements when ‘circumstances
indicate lack of trustworthiness’”).
3. The district court did not abuse its discretion in admitting the
statements in the 911 call as present-sense impressions.
Though I respectfully disagree with the majority’s approach, I agree
with its outcome because the district court reasonably treated the
challenged statements as sufficiently contemporaneous to constitute
present-sense impressions.
As the majority explains, we review the district court’s decision
under the abuse-of-discretion standard. This standard is ordinarily
deferential, Marczak v. Greene, 971 F.2d 510, 516 (10th Cir. 1992), and we
1
Some of the majority’s authorities do not involve the exception for a
present-sense impression, and I would not apply these authorities. See,
e.g., United States v. Gaines, 918 F.3d 793, 806 (10th Cir. 2019)
(Tymkovich, C.J., dissenting) (invoking the reliability of an anonymous tip
as grounds for concluding that an investigative stop was supported by the
reasonable suspicion required by the Fourth Amendment); First State Bank
of Denton v. Maryland Cas. Co., 918 F.2d 38, 42 (5th Cir. 1990)
(discussing “the catch-all exception to rule 803,” Fed. R. Evid. 803(24),
and stating that “the core inquiry” under this exception “concerns the
reliability of the declarant” (quoting United States v. White, 611 F.2d 531,
538 n.7 (5th Cir. 1980))).
7
review with “heightened” deference here because of “the fact-specific
nature of a hearsay inquiry.” United States v. Pursley, 577 F.3d 1204, 1220
(10th Cir. 2009) (citing United States v. Trujillo, 136 F.3d 1388 (10th Cir.
1998)). Discretion means that the district court has a “range of choice, and
. . . its decision will not be disturbed as long as it stays within that range
and is not influenced by any mistake of law.” Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (quoting Guideone Elite
Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1324
(11th Cir. 2005)). So when we review a district court’s ruling under the
abuse-of-discretion standard, we are ultimately deciding whether the
district court has made a reasonable choice among the alternative
outcomes. Gasperini v. Center for Humanities, Inc., 149 F.3d 137, 141 (2d
Cir. 1998).
We elsewhere apply the abuse-of-discretion standard by recognizing
the permissibility of various outcomes. For example, when confronted with
challenges to the substantive reasonableness of a sentence, we’ve often
recognized that many sentences are typically reasonable. See, e.g., Gall v.
United States, 522 U.S. 38, 51 (2007). We thus find an abuse of discretion
only when the district court chooses a sentence outside the range of
reasonable sentences. E.g., United States v. DeRusse, 859 F.3d 1232, 1236
(10th Cir. 2017).
8
So it is here when we review the admission of present-sense
impressions. In this area, the test lacks bright-line distinctions. See United
States v. Green, 556 F.3d 151, 156 (3d Cir. 2009) (“[C]ourts have not
adopted any bright-line rule as to when a lapse of time becomes too
lengthy to preclude Rule 803(1)’s application.”); see also United States v.
Blakey, 607 F.2d 779, 785 (7th Cir. 1979) (“There is no Per se rule
indicating what time interval is too long under Rule 803(1).”), overruled
on other grounds by United States v. Harty, 930 F.2d 1257, 1263 (7th Cir.
1991). Some statements are so obviously contemporaneous that no one
would question whether they constitute present-sense impressions. For
example, consider a 911 call in which a witness reports a robbery in
progress. This report would obviously be considered contemporaneous. On
the other hand, some statements are so clearly separated in time from the
incident that no one would regard the statements as present-sense
impressions. For example, a 911 call detailing the events of a robbery a
week earlier would obviously not qualify as contemporaneous.
Between these polar extremes is a large gray area: statements in 911
calls that could reasonably be regarded as either contemporaneous or non-
contemporaneous. For these statements, district courts have broad
discretion in determining admissibility. See Balentine v. State, 707 P.2d
922, 926 (Alaska Ct. App. 1985) (observing that the Alaska version of the
9
rule for present-sense impressions “leaves much room for subjective
application”).
All of the challenged statements fall within this gray area, where
district courts enjoy considerable discretion. Some of the disputed
statements reported ongoing observations, some recalled events that had
occurred several minutes earlier, and some answered specific questions
from the 911 operator. For each statement, the district court could
reasonably conclude that the caller was
• describing or explaining an event
• while or immediately after the caller saw the event
• sufficiently close in time to the event to qualif y as a present-
sense impression.
See Majority Op. at 11. Given the reasonableness of these conclusions, I
would hold that the district court did not abuse its discretion in treating
each challenged statement as a present-sense impression.
10