United States v. Tinsley

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-27-2006
USA v. Tinsley
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4245
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4245
UNITED STATES OF AMERICA
v.
THEODORE TINSLEY,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 03-cr-00798)
District Judge: Honorable Petrese B. Tucker
Argued January 31, 2006
Before: McKEE, VAN ANTWERPEN, and SILER,* Circuit Judges.
(Filed March 27, 2006)
Maureen Kearney Rowley
David L. McColgin
Robert Epstein (Argued)
Defender Association pf Philadelphia
Federal Court Division
Suite 540 West – The Curtis Center
601 Walnut Street
Philadelphia, PA 19106
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit,
sitting by designation.
Counsel for Appellant
Patrick L. Meehan
Robert A. Zauzmer
John M. Gallagher (Argued)
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for the Government
____
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Theodore Tinsley was convicted by a jury on July 16, 2004, of one count
each of gun possession in furtherance of a drug trafficking crime (count 1), felon in
possession (count 2), and possession of crack cocaine with intent to distribute (count 3). On
October 22, 2004, the District Court sentenced Tinsley to 197 months imprisonment. This
appeal stems first from the District Court’s decision, before trial, to disqualify Tinsley’s
retained counsel on the ground that counsel might be called as a witness to describe having
seen, handled, and discussed a similar gun in the possession of Tinsley’s girlfriend four to
five years prior to the charged offenses. Second, Tinsley appeals the District Court’s
exclusion, as hearsay, of certain testimony by a defense witness regarding threatening phone
calls received by Tinsley, the contents of which he recounted to the witness. We have
jurisdiction pursuant to 18 U.S.C. § 1291, and will affirm.
2
I.
Because we write solely for the benefit of the parties, we state the facts only as they
pertain to our analysis.
In the early morning of October 17, 2003, Tinsley was spotted driving by two law
enforcement officers who knew from recent encounters that Tinsley had a suspended license;
they also noticed that his license plate was not illuminated as required by law. After briefly
attempting to elude the officers, Tinsley was pulled over to the side of the road. When
ordered to exit the car, Tinsley refused, became verbally and physically agitated, and
assaulted the officers. During the ensuing struggle, a Tech-9 machine pistol fell from his
waistband onto the street. Eventually the officers and reinforcements succeeded in subduing
Tinsley and placing him in a patrol car, where Tinsley broke a window and bent the door
frame. A search of Tinsley’s clothing revealed about 16-18 grams of crack cocaine. No drug
paraphernalia was found on his person or in his vehicle. The gun was recovered and found
to be fully loaded, with the serial number removed.
Tinsley was indicted on December 3, 2003, by a federal grand jury on three counts:
Possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c); Felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and
Possession with intent to distribute more than 5 grams of cocaine base (“crack”), in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii). In the District Court for the Eastern District of
Pennsylvania, which had jurisdiction pursuant to 18 U.S.C. § 3231, Tinsley pleaded not
3
guilty to all three counts of the indictment.
Following an initial appearance, Tinsley’s retained counsel informed both the
Government and the Bureau of Alcohol, Tobacco, and Firearms, that counsel had seen, about
four to five years earlier, a Tech-9 while at Tinsley’s girlfriend’s home. Counsel said he had
handled the pistol and had discussed it with Tinsley’s girlfriend. Following this disclosure,
Tinsley’s counsel refused the Government’s request that he withdraw voluntarily from the
case. The Government then filed a motion to preclude counsel from representing Tinsley,
on the ground that he might be called as a material witness in the case if, for example,
Tinsley claimed the gun had been planted by the police officers during his arrest. The
District Court held a hearing at which it heard argument from both sides, and ultimately
granted the Government’s motion to preclude, stating that “while it [counsel’s potential
testimony] does not go directly to an element of the offense against this defendant, it is
relevant and can be relevant for purposes of proving the case by the government.” Tinsley
was subsequently represented by the Federal Defender’s Association.
During the first phase of a four-day bifurcated trial, Tinsley presented as a defense to
counts 1 and 3 that he was carrying the gun for self-defense, not in furtherance of a drug
trafficking crime. He presented a witness, Kadedra Holmes, who testified that Tinsley had
been shot at several months prior to his arrest while attempting to break up a fight at a
nightclub. However, the District Court refused, on the grounds of inadmissible hearsay, to
allow Holmes to testify that before his arrest, she was in Tinsley’s presence when he received
4
several phone calls allegedly threatening his life. She did not hear the content of the calls
personally, but Tinsley related the calls to her. The jury subsequently convicted Tinsley of
both counts 1 and 3, and in the second phase of the trial, convicted him of count 2, on the
basis of a stipulated previous felony conviction. On October 22, 2004, the District Court
sentenced Tinsley to 197 months imprisonment, comprising 137 months for counts 1 and 3,
and 60 months to be served consecutively for count 2, and eight years of supervised release.
Tinsley now appeals both the District Court’s pre-trial disqualification of his attorney, and
the exclusion on hearsay grounds of Holmes’s testimony regarding the threatening phone
calls.
II.
In reviewing a District Court’s decision to disqualify an attorney, “First, we exercise
plenary review to determine whether the district court’s disqualification was arbitrary – ‘the
product of a failure to balance proper considerations of judicial administration against the
right to counsel.’” United States v. Stewart, 185 F.3d 112, 120 (3d Cir. 1999) (quoting
United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir. 1996)). Second, if the decision was not
arbitrary, we then review for abuse of discretion. Id. We review the District Court’s
application of the Federal Rules of Evidence for abuse of discretion. United States v. Saada,
212 F.3d 210, 220 (3d Cir. 2000).
III.
A. Disqualification of Counsel
5
In its Motion to Preclude, the Government argued that because Tinsley’s counsel had
previously seen a similar gun in the possession of Tinsley’s girlfriend, counsel might be
called as a material witness to testify to the sighting. For example, Tinsley might claim that
the gun had been planted during his arrest, at which point the Government would seek
Tinsley’s counsel’s testimony. This, the Government argued, would inevitably create a
conflict of interest on the part of Tinsley’s counsel. Tinsley argued in response that the
conflict was only potential, and that the origin of the gun was not a matter at issue in the trial,
therefore his counsel was not a “necessary” witness and should not be disqualified. For the
reasons that follow, we find that the District Court did not err in disqualifying Tinsley’s
counsel on the basis of a potential conflict of interest.
As stated above, our inquiry is two-tiered. We first review whether the District
Court’s decision was arbitrary. We look for such elements as a reasoned decision and a
developed record. Voigt, 89 F.3d at 1074. Second, if the decision was not arbitrary, we ask
whether the District Court abused its discretion in disqualifying Tinsley’s counsel. For the
reasons set forth below, the District Court’s decision was neither arbitrary nor an abuse of
discretion.
Under United States v. Merlino, 349 F.3d 144 (3d Cir. 2003), we find that the
decision to disqualify Tinsley’s counsel was not arbitrary – “the product of a failure to
balance proper considerations of judicial administration against the right to counsel.’”
Stewart, 185 F.3d at 120 (quoting Voigt, 89 F.3d at 1074). Merlino involved a lawyer who,
6
on behalf of his client, visited a potential government witness in prison, passed messages
suggesting that the witness could return to Philadelphia without danger from the defendant’s
crime organization, discussed the identity of the new crime boss, and attempted to give the
witness money. The District Court in Merlino considered all the evidence the parties wished
to submit, questioned the parties, and heard oral argument before disqualifying the lawyer.
349 F.3d at 150. Here, the District Court was presented with a factually-detailed motion
from the Government; the court heard oral argument from both sides; Tinsley’s counsel did
not dispute that he had seen the gun and spoken with Tinsley’s girlfriend about it; and the
court identified the potential – indeed likely – conflict of interest that would arise even if
Tinsley’s counsel was not called as a witness. Similarly, as Tinsley admitted at argument,
there were no disputed facts regarding the earlier incident, and therefore the lack of factual
findings is not surprising.
All of these factors weigh heavily in favor of finding that the District Court’s decision
was not arbitrary. We are also reassured by the District Court’s detailed questioning of
Tinsley to ensure that he would not be unreasonably adversely-impacted by the need to
obtain new counsel. It is evident from the record that the District Court was concerned
about the defendant’s right to counsel as well as the conflict of interest, and under such
circumstances we will not elevate form over substance and require a District Judge to state
7
explicitly his or her cognizance of a defendant’s Sixth Amendment right to counsel,1 or to
state “I am now balancing the defendant’s right to counsel against considerations of judicial
administration.”2
We recognize that Merlino is potentially distinguishable because of, for example, the
lack of a written memorandum of decision here, and the fact that the relevant defendant in
Merlino had only one of his two retained lawyers disqualified and was therefore never
deprived of both his counsel of choice. These are small distinctions however, and
nonetheless, we find that Merlino’s rationale easily extends to cover the case at bar.3
The second step of our inquiry asks whether the District Court’s non-arbitrary
decision to disqualify Tinsley’s counsel was nonetheless an abuse of discretion. “A criminal
defendant’s Sixth Amendment right to counsel of one’s choice is not absolute; ‘where
considerations of judicial administration supervene, the presumption in favor of counsel of
choice is rebutted and the right must give way.’” Merlino, 349 F.3d at 150 (quoting Voigt,
1
We reject Tinsley’s assertion at argument that the District Court was not aware that
Tinsley had a “right to counsel of choice.” We also note that the Government explicitly cited
Merlino – our leading case on the subject of disqualification of counsel of choice and in
general – in its disqualification motion.
2
In an analogous context, we have not hesitated to find satisfied the requisite balancing
of probative value and potential prejudicial impact under Fed.R.Evid. 403, even where the
District Court does not explicitly go through a balancing inquiry. See, e.g., Ansell v. Green
Acres Contracting Co., 347 F.3d 515 (3d Cir. 2003).
3
Here, the potential conflict regarding Tinsley’s counsel was apparently known at the
time of Tinsley’s arraignment, and the Federal Defenders Association was actually appointed
to represent him for a period of time. His counsel’s potential disqualification can therefore
hardly be said to have caught Tinsley completely off-guard.
8
89 F.3d at 1074). Tinsley argues that the District Court’s decision was erroneous because
his counsel was not a “necessary” witness. We have never imposed such a requirement.
Instead, in Merlino we stated that the lawyer could have been appropriately disqualified
because he might be called as a witness, and “disqualification may also be appropriate where
it is based solely on a lawyer’s personal knowledge of events likely to be presented at trial,
even if the lawyer is unlikely to be called as a witness.” Id. at 152 (emphasis added). This
case is no different. The District Court correctly found that a conflict was present because
Tinsley’s counsel might be called as a witness if it became necessary to prove Tinsley’s
previous possession of the gun. If he remained in the case, we do not see how Tinsley’s
counsel could ethically decide whether or not to strategically present a planted-evidence
defense. See Merlino, 349 F.3d at 152 (noting that counsel was put in a “compromised
position” given that the defendant “employed a ‘mob-denial’ defense at trial”); Stewart, 185
F.3d at 122 (“[T]he district court could not accept [the defendant’s] assurances that he would
not pursue an alternate strategy at trial.”). We find that the District Court did not abuse its
discretion in disqualifying Tinsley’s counsel based on this conflict.
B. Hearsay Evidence
Tinsley next challenges the District Court’s exclusion of Kadedra Holmes’s testimony
regarding what Tinsley told her about the allegedly threatening phone calls he received
before his arrest. Tinsley alleges that this testimony was admissible as non-hearsay evidence
as it showed Tinsley’s state of mind (fear), and was not being used for the truth of the matter
9
(that Tinsley was in fact being threatened). The District Court excluded this testimony as
inadmissible hearsay. We find that the District Court did not abuse its discretion.
Tinsley offers on appeal two justifications for the testimony – state of mind, under
Fed.R.Evid. 803(3), and excited utterance, under Fed.R.Evid. 803(2). While we conclude
that Holmes’s testimony might ultimately have been admissible under one of these
exceptions, the decision to exclude was well within the District Court’s discretion given the
minimal proffer made at the time. Fed.R.Evid. 803(3) permits “statement[s] of the
declarant’s then existing state of mind, emotion, sensation . . . but not including a statement
of memory or belief to prove the fact remembered or believed . . . .” Before the District
Court, however, Tinsley argued that Holmes’s testimony went “to [Tinsley’s] state of mind
in terms of what he reasonably believed.” (emphasis added). The proffer also did not
include any indication that Holmes would testify that Tinsley said, “I’m afraid” – an actual
statement of his state of mind. There was no abuse of discretion in excluding evidence
based on this proffer.
Tinsley also argues that Holmes’s testimony was admissible under Fed.R.Evid.
802(2), which permits “statement[s] relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.” Before the
District Court, Tinsley argued only that “even if, as counsel suggests, there were a hearsay
issue here, this is clearly an excited utterance. But that is . . . not really what I need to offer
it for. Just for his state of mind . . . .” Whether or not Holmes’s testimony ultimately would
10
be admissible under the excited utterance exception, we cannot conclude that the District
Court abused its discretion in rejecting such a limited proffer that provided no foundation
for applying this hearsay exception. We will therefore affirm the District Court’s refusal to
admit Holmes’s testimony on this point.
IV.
For the foregoing reasons, we conclude that the District Court properly disqualified
Tinsley’s retained counsel and excluded Kadedra Holmes’s hearsay testimony regarding
threatening phone calls. We have considered all other arguments made by the parties on
appeal, and conclude that no further discussion is necessary.
United States v. Tinsley, 04-4245
McKee J., Dissenting
Although I am compelled to dissent, I note at the outset that there is much to
commend the majority’s Sixth Amendment analysis. Indeed, if we had the luxury of writing
on the proverbial “blank slate,” I would have no hesitation joining it. For reasons that are
not at all apparent on this record, Tinsley’s retained counsel told the prosecutor that 4 or 5
years earlier, he (counsel) had seen a gun similar to the one in question here, in the home of
Tinsley’s girlfriend. That disclosure created the possibility that counsel would be called to
testify against his own client if Tinsley employed a trial strategy of arguing that police
planted the gun on him during his arrest. The District Court was understandably concerned
that the government might call defense counsel as a witness against his own client in the
11
middle of a jury trial. Accordingly, the court granted the government’s motion to remove
counsel, and Tinsley proceeded with an attorney who was not compromised by a potential
conflict.
Nevertheless, because this record does not meet the requirements set forth in United
States v. Voigt, 89 F.3d 1050 (3d Cir. 1996), and because I am also troubled by the majority’s
resolution of Tinsley’s hearsay claim, I must respectfully dissent.
I. Tinsley’s Sixth Amendment Claim.
The right to counsel guaranteed by the Sixth Amendment includes the right to counsel
of choice. Powell v. Alabama, 287 U.S. 45, 53 (1932). However, the right to counsel of
choice must give way when it is outweighed by considerations of judicial administration.
Voigt, 89 F.3d at 1074. In Voigt we explained that cases involving the Sixth Amendment
right to counsel of choice “can . . . be divided into two categories.” Id. The first category
involves “‘arbitrary’ denials of the right to counsel.” Id. (citing Fuller v. Diesslin, 868 F.2d
604, 607 (3d Cir. 1989)). The second category “concerns ‘a non arbitrary, but erroneous
denial’” of the right to counsel. Voigt, 89 F.3d at 1074 (citing Fuller, 868 F.2d at 609 n.4).
The arbitrariness comprising the first category of cases does not suggest “arbitrary”
in the usual sense of an impulsive or whimsical act. Rather, a denial of the right to counsel
is “arbitrary” when it results from “a failure to balance proper considerations of judicial
administration against the right to counsel.” Voigt, 89 F.3d at 1074. In Voigt, we also
12
explained that, although the decision to remove counsel of choice need not be based upon
a hearing or supported by factual findings formally stated on the record, it must nevertheless
be supported by a “reasoned determination on the basis of a fully prepared record.” Id.
(quoting Fuller, 868 F.2d at 609 n.4.). In fact, in Voigt, we upheld the court’s removal of
defense counsel even though the court did not conduct an evidentiary hearing. However,
there, “the court had before it submissions of the various parties, including sworn affidavits
and documentary evidence attached as exhibits.” 89 F.3d at 1076. We concluded that
“record was fairly substantial.” Id.
Voigt and several co-defendants were indicted for conspiracy to commit wire fraud
and related offenses. The government alleged that certain trusts had been created as part of
a scheme to defraud investors, launder funds, and evade taxes. Binns, one of Voigt’s defense
attorneys, had previously represented the trusts and a codefendant in some capacity, and one
of Voigt’s codefendants filed a motion to disqualify him from defending Voigt at trial. The
motion was supported with an eleven page letter with attached exhibits including
correspondence between Binns and the United States Attorney regarding Binns’
representation, a memorandum and notes by the codefendant regarding litigation strategies
that mentioned Binns, and communications with investors in the trust directing them to
contact Binns or deposit funds into an escrow account. Id. Binns responded with “ninety-six
pages of documentary support” in opposition to the motion. His reply included affidavits,
grand jury transcripts, correspondence, and FBI reports. Id.
13
Based upon that voluminous record and the uncontested evidence before the District
Court, we held that the District Court’s removal of Binns was not arbitrary even though the
court did not conduct a hearing before granting the motion. In explaining its reasons for
removing Binns, the District Court stated:
We have here a number of very serious issues. As a matter of
fact, I would characterize it really as a foaming caldron of
representation issues here. Such that I am convinced that it
would be foolhardy for me to go forward and inject potential
error and possible violation of the rights of codefendants in what
purports to be a lengthy and complicated criminal case right at
its inception before we have even heard any motions.
***
Mr. Binns has had substantial involvement in pre-indictment
events concerning the case. . . .We have a letter that he
represented [a codefendant] for a limited purpose. We have
[the codefendant], according to counsel's submission, saying that
he thought Mr. Binns was going to represent him and later
saying that he didn't. . . .
And I am convinced, based upon the precedent, that it would be
very foolish for me to proceed and to allow [Binns to represent
Voigt].... [T]o allow him to come into court and cross-examine
other persons based upon his personal knowledge, possibly to
examine persons . . . he has represented beforehand, whether
directly or otherwise, is exactly the concern that the cases have
raised.
Id. at 1073. After considering this thorough explanation based upon the court’s review of
the evidence there, we held that “the record was more than sufficient to enable the District
Court to make a reasoned and well informed decision. Formal findings of fact [were] not
required.” Id. at 1076. The situation here is quite different.
14
My colleagues state that the “District Court [here] was presented with a factually-
detailed motion from the government . . .”. Maj. Opn.. at 7. That factually detailed motion
consisted solely of the prosecutor informing the District Court that defense counsel had
informed the prosecutor and an ATF agent that defense counsel had seen a similar weapon
in the defendant’s girlfriend’s possession 4 or 5 years earlier. App. at 777-78. That is hardly
a “factually detailed motion.” I realize, of course, that defense counsel did not dispute that
representation, but that does not mean that the motion was “factually detailed” or that the
record was fully developed. For example, there was no exploration of whether the girlfriend
was available to testify about the gun, and the court never inquired into whether the
government and defendant would stipulate to the fact that the girlfriend possessed a similar
weapon in the event that testimony became necessary. Rather, the District Court’s entire
explanation of the Sixth Amendment ruling is as follows:
I’m inclined to agree with the government on this motion
because while it does not quote directly to an element of the
offense against this defendant, it is relevant and can be relevant
for purposes of proving the case by the government. So that I
will grant the government’s motion in this matter, and remove
counsel as counsel for the defendant.
App. at 786.
Thus, the District Court removed defense counsel because he had “relevant”
testimony. Absent any inquiry into alternative ways of producing the same evidence in the
15
event it became relevant, the record simply does not support removing defense counsel.4
It is, of course, possible that even if a stipulation had been reached, or the girlfriend
was available, the District Court could still have concluded that the balance tipped in favor
of removing defense counsel. However, in that event, the record would at least have been
more complete and we could then have reviewed the court’s balancing for an abuse of
discretion. Since this record does not reflect any balancing, there was a per se violation of
Tinsley’s Sixth Amendment right to counsel. As we explained in Voigt, “to be nonarbitrary,
. . . the District Court actually must make findings based on evidence in the record and weigh
these findings against the right to counsel.” 89 F.3d at 1077. Given this absence of
balancing, we must reverse because the resulting arbitrary denial of counsel is not amenable
to a harmless error analysis. See Voigt, 89 F.3d at 1077 (stating that the Sixth Amendment
right to choice of counsel is “the one area [where] our . . . jurisprudence indicates” that a
harmless error inquiry “is singularly inappropriate.”).
Moreover, I do not think our inquiry here is advanced by the analogy the majority
seeks to draw to the balancing that is required under Fed. R. Evid. 403. My colleagues note
4
The majority notes that disqualification of an attorney has been upheld where the attorney
“might be called as a witness,” Maj. Opn. at 9 (emphasis in original). I agree that it is the potential
of being called as an adverse witness rather than the certainty that raises concerns about the
administration of justice. Nevertheless, I am troubled because, based upon uncontradicted
representations at oral argument, it appears that the government never listed Tinsley’s attorney as
a “potential” witness before the District Court. That unexplained omission is troubling given the
prosecution’s reliance on counsel’s potential testimony as grounds from disqualifying him. I find
that contradiction difficult to understand unless the advocacy in the District Court included a bit of
adversarial “gotchya.”
16
that “we have not hesitated to find satisfied the requisite balancing of probative value and
potential prejudicial impact under Fed. R. Evid. 403, even where the District Court does not
explicitly go though a balancing inquiry.” Maj. Opn. at 7 n. 2 (citing Ansell v. Green Acres
Contracting Company, 347 F.3d 515 (3d Cir. 2003). Here, we are concerned with the denial
of a fundamental right, not the interplay of two conflicting rules of evidence, and our Rule
403 jurisprudence is therefore of little assistance.
The majority also rests its Sixth Amendment analysis on United States v. Merlino, 349
F.3d 144 (3d Cir. 2003), and Tinsley cites to it as well as to Voigt. However, Merlino is a
very different case. Merlino did not involve an “arbitrary” removal of counsel at all. Rather,
in Merlino, “[t]he question [was] whether the District Court’s ultimate conclusion to
disqualify [defense counsel] constituted an abuse of discretion.” 349 F.3d at 150. The case
is therefore not as helpful as the majority suggests because the absence of the required
balancing here raises the issue of an arbitrary denial the right to counsel, not an abuse of
discretion. In Merlino, we explicitly noted that the court “engaged in the balancing required
by the Sixth Amendment . . . ”. Id. It is quite a stretch to find any such balancing on this
record.
In addition, defense counsel’s conduct in Merlino was nothing short of outrageous,
and the case is therefore less analogous to the circumstances here than the majority’s analysis
suggests. In Merlino, defense counsel visited a prison where he spoke with an inmate who
was to testify against a leader of an organized crime faction. The discussion the attorney had
17
with that witness was tantamount to an obstruction of justice. The discussion could also have
been interpreted as either a subtle threat, or an attempt to lull the witness into lowering his
guard so that he might more easily become a target for mob ordered violence. The
government also argued that the defense attorney had “smuggled” a five page letter from the
mob boss who was about to stand trial to the potential witness. 349 F.3d at 151. Under the
circumstances, we held that counsel’s visit to the witness “was reason enough for his
disqualification.” Id. at 152. Nothing we said in Merlino can enhance this record or create
the required balancing where there was none.
Given the state of this record and the absence of the balancing required under Voigt,
I believe the District Court’s removal of defense counsel was arbitrary.
II. Tinsley’s Hearsay Argument
Tinsley also argues that the District Court erred in excluding the testimony of Kadedra
Holmes. He claims that evidence was admissible either under the Rule 803(3) state-of-mind
exception to the hearsay rule, or as an excited utterance under Fed. R. Evid. 803(2). The
majority rejects his claim, not because Tinsley is wrong, but because of the “minimal proffer
[he] made at the time.” Maj. Opn. at 10. Although I concede that it is a “close call,” I
disagree with the majority’s conclusion that the proffer precludes relief. I also disagree with
the majority’s statement of the applicable standard of review.
When offering Holmes as a witness, defense counsel stated that “she was present with
Mr. Tinsley when he received threatening phone calls on his cell phone.” App. at 615. In
18
arguing for the admission of that evidence, counsel stated that he was offering it:
one, for a nonhearsay purpose, and that is his state of mind.
Whether these particular people were really going to kill him or
not, I’m not offering it for the truth of the matter asserted. . .
But this is classic state of mind evidence. It goes to his state of
mind in terms of what he reasonably believed, and it gives us an
alternative explanation, alternate from the furtherance of the
drug traffic offense explanation for possession a firearm. So
that’s the purpose of it, the nonhearsay purpose for state of
mind.
And even if, as counsel suggests, there were a hearsay issue
here, this is clearly an excited utterance. But that is not really
what I need to offer it for. Just for his state of mind is because
it goes to the intent which is what the inference either way is.
(sic). Whether its for self protection or whatever it’s for a
furtherance of drug trafficking, it’s an intent issue, a state of
mind issue. This is classic state of mind evidence.
App. at 615-16.
A short while later, after Holmes took the witness stand, defense counsel asked for
a sidebar conference during which he again asked that Holmes be permitted to testify about
the threatening phone calls. Counsel again argued that Holmes was present when phone calls
were made to the defendant’s cell phone. Defense counsel argued that Tinsley told Holmes
that “the threats - - that I have just been threatened with my life, so she is aware of it. It
clearly goes to state of mind, his state of mind, and is clearly relevant. Its not being offered
for hearsay purposes, and I would renew my request to offer that evidence. It’s classic non-
hearsay purpose is state of mind.” App. at 623.
My colleague’s rejection of that argument is based upon an ultra-technical application
19
of the rules of evidence. They explain: “[t]he proffer . . did not include any indication that
Holmes would testify that Tinsley said, ‘I’m afraid’ – an actual statement of his state of mind.
There was no abuse of discretion in excluding evidence based on this proffer.” Maj. Opn.
at 10. Yet, in rejecting Tinsley’s Sixth Amendment argument based upon the District Court’s
failure to articulate the required balance, the majority proclaims it “will not elevate form
over substance and require a District Judge to state explicitly his or her cognizance of a
defendant’s Sixth Amendment right to counsel[.]”5 Maj. Opn. at 7-8. However, we are
willing to elevate form over substance in denying Tinsley relief by relying upon a very
technical interpretation of Tinsley’s proffer and thereby upholding a decision to deny
admissible testimony.
Tinsley was clearly attempting to have Holmes testify that Tinsley had been
threatened. Evidence of the purported threats was not hearsay. See United States v. Saada,
212 F.3d 210 (3d Cir. 2000). The testimony was not offered to establish the truth of any
threat of harm, but to establish the theat was made, and therefore support Tinsley’s claim
that he had the gun for self defense unrelated to any involvement with illegal drugs. In
Saada, we stated: “[N]ot every extrajudicial statement constitutes hearsay. Rather, [i]f the
significance of an offered statement lies soley in the fact that it was made, no issue is raised
as to the truth of the matter asserted, and the statement is not hearsay.” Id. at 218 n.8
(citation and internal quotations omitted).
5
Of course, it is not the court’s knowledge of Tinsley’s right to counsel that is at issue, but
whether the court balanced that right on the record.
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I realize that defense counsel did not argue that the purported threats amounted to a
“verbal act,” and to that extent I agree his proffer was lacking. However, the District Court’s
ruling was not based upon that technicality, nor the one relied upon by my colleagues.
Rather, in explaining the rejection of that testimony, the court stated: “I’m not going to
permit it because the government has absolutely no way of testing the veracity. And while
you may be entering it for a state of mind, it really does rely upon the truth of the matter of
what was said, and I’m not going to permit it.” App. at 623-624.
However, admissibility of evidence does not turn on the ease with which the party
opponent can refute its veracity. Testimony that is admissible under the Rules of Evidence
is not transformed into inadmissible testimony merely because the party opponent has only
cross-examination to attack its accuracy. Nor is nonhearsay transformed into hearsay merely
because jurors may infer the truth of matters that are not offered for the truth of the assertion.
Were that the rule, there would be precious few, if any, exceptions to the hearsay rule as the
same problem exists with almost any excited utterance or state of mind testimony. In fact,
the problem is endemic in the nature of hearsay and its exceptions and is present whenever
a court instructs a jury not to accept an out of court statement for the truth of the matter but
for the limited purpose of the applicable exception to the hearsay rule. Here, the court’s
concern that the jury would misuse the evidence should have been addressed by giving a
limiting instruction, not by preventing the jury from hearing the testimony.
The majority reviews this claim of error for an abuse of discretion. However, the
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District Court’s rejection of Holmes’ testimony was based upon an erroneous interpretation
of the Rules of Evidence. Our review of the District Court’s interpretation of the Federal
Rules of Evidence is plenary; we do not review legal error for an abuse of discretion. See
States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001). The latter is applied to evidentiary rulings
“premised on a permissible view of the law.” United States v. Pelullo, 964 F.2d 193, 199
(3d. Cir. 1992).
Tinsley’s defense was, in part, that he possessed the gun because he had received
threats unrelated to any involvement with drugs. The jury certainly may have rejected that
claim even if it had heard Holmes’ testify about the alleged threats, but Tinsley was entitled
to rely upon that testimony in placing his defense before the jury. Accordingly, I am not
comfortable relying upon an argument that precluding Holmes’ testimony was harmless error.
See, e.g., Government of the Virgin Islands v. Knight, 989 F.2d 619, 630 (3d Cir. 1993)
(District Court’s improper exclusion of evidence is not harmless error when it is highly
probable that the error contributed to the jury’s judgment of conviction). The jury had to
decide whether the gun was possessed in connection with Tinsley’s drug distribution or for
self-defense unrelated to that criminal activity.
The jury did hear evidence that he tried to break up a barroom fight several months
before his arrest. That evidence, by itself, could have raised a reasonable doubt about why
Tinsley had the gun he was arrested with. However, Holmes’ testimony about telephoned
threats may well have given the testimony about the barroom fight an added dimension that
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could have raised a reasonable doubt about his motive for having the gun. Since the jury was
not allowed to hear that testimony, I must respectfully disagree with the analysis of my
colleagues.
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