                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2003

USA v. Lawrence
Precedential or Non-Precedential: Precedential

Docket No. 02-3340




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                       PRECEDENTIAL

                            Filed November 13, 2003

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                  No. 02-3340


         UNITED STATES OF AMERICA
                       v.
               DION LAWRENCE,
                        Appellant

       On Appeal from the District Court
               of the Virgin Islands
      (Criminal Action No. 00-CR-00654)
     District Judge: Hon. Thomas K. Moore

             Argued: April 29, 2003
Before: ROTH, McKEE and COWEN, Circuit Judges.

       (Opinion Filed: November 13, 2003)

                KIRSTEN GETTYS DOWNS, ESQ.
                 (Argued)
                Assistant Federal Public Defender
                THURSTON T. McKELVIN, ESQ.
                Federal Public Defender
                P.O. Box 1327, 51B Kongens Gade
                Charlotte Amalie, St. Thomas,
                 USVI 00804
                Attorney for Appellant
                                2


                          SARAH L. WEYLER, ESQ. (Argued)
                          Assistant United States Attorney
                          DAVID M. NISSMAN, ESQ.
                          United States Attorney
                          U.S. Courthouse,
                           5500 Veterans Building,
                           Suite 260
                          Charlotte Amalie, St. Thomas,
                           USVI 00802-6924
                          Attorneys for Appellee


                 OPINION OF THE COURT

McKEE, Circuit Judge.
  Dion Lawrence challenges his conviction for first degree
murder and related charges arising out of a fatal shooting
on the island of St. Thomas, U.S. Virgin Islands. Lawrence
argues that photographic arrays shown to government
witnesses were unduly suggestive, that the trial court erred
in granting the government’s motion in limine to exclude
evidence that the victim identified someone else as his
assailant, and that the evidence was insufficient to prove
the premeditation required for first degree murder. In
addition, in a matter of first impression in this circuit,
Lawrence argues that the government failed to establish
that the weapon involved was not an antique and therefore
not a “firearm” within the meaning of 18 U.S.C. §§ 922(g)
and 924(c)(1), (j)(1). For the reasons set forth below, we
reject each of Lawrence’s arguments, and we will affirm his
convictions on the charges set forth in the indictment.

                     I.    BACKGROUND
  Lawrence was convicted of murder in the first degree in
violation of 14 Virgin Islands Code (V.I.C.) § 922(a)(1);
possession of a firearm as an illegal alien in violation of 18
U.S.C. § 922(g); and use of a firearm during and in relation
to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)
and (j)(1). The convictions stemmed from the April 22, 2000
shooting of George “Josh” Hodge, Jr.
                              3


   On the day of the shooting, Hodge was in the Boat Bar
on Coki Point Beach, St. Thomas, sitting a few feet away
from Kenneth Harrigan. Hodge was wearing several gold
necklaces that day, as was his custom. Harrigan later
testified that a man known to him as “Trini” approached
and asked for some marijuana. Harrigan told Trini he had
none, and a few minutes later Trini walked away. However,
he returned about 15 minutes later and asked Harrigan for
some rolling paper, which Harrigan gave him. Trini then
“rolled” a “cigarette” of tobacco and marijuana and smoked
it. When he finished, Trini told Harrigan: “This is nothing
personal. Don’t take this personal.” Trini then grabbed
Hodge by the belt saying: “It’s you I come for.” Trini then
pulled out a gun and shot Hodge. As Harrigan ran from the
scene, he saw Trini fire a second shot, and then heard a
third shot before leaving the scene and seeing Trini run
away.
  Karl Frederiksen and Tynisha Martin were on the beach
about 50 feet from Harrigan and Hodge, facing away from
them when the shooting occurred. Frederiksen saw a man
he knew as “Tall Boy” talking and smoking near Hodge.
Frederiksen was looking in the direction of the Boat Bar at
the time of the shooting because he heard Hodge yelling,
and saw Tall Boy with at least one of Hodge’s gold
necklaces in his hand and a gun in his other hand.
Frederiksen heard three shots, and saw Hodge hold on to
his gold chains before falling to the ground. He then saw
Tall Boy run away through some bushes with a stocking
cap pulled over his face. Fredericksen then went to see if
she could help Hodge.
  Hodge spoke only briefly to a police officer who arrived on
the scene. He told the officer that the shooter grabbed his
gold Gucci chain and shot him. However, he gave no
description, and said nothing else that was helpful to the
ensuing investigation. When Hodge arrived at the hospital,
doctors learned that he was paralyzed from the neck down
and unable to speak due to his injuries and a subsequent
tracheotomy.
  Berenice Hodge, the victim’s sister, arrived at the hospital
the following day — April 23, 2000. Hodge tried to
communicate with his sister, but communication was
                              4


exceedingly difficult because of Hodge’s injuries, resulting
paralysis and tracheotomy. He did, however, manage to say
“Ogami,” and when she repeated “Ogami” back to Hodge, he
would nod his head “yes.” Hodge also said “T.” Berenice
Hodge later informed two members of the Virgin Islands
Police Department, including Sergeant Curtis Griffin, what
her brother had said.
   Hodge began to withdraw and become non-responsive
after his first week of hospitalization. On May 20, 2000, he
began bleeding through his nasogastric tube. That same
day Police Officer Cordell Rhymer showed Hodge a
photographic array assisted by a nurse. The nurses had
developed a method of non-verbal communication with
Hodge whereby he would blink and/or nod in response to
questions. When Rhymer showed Hodge the photograph
array, the nurse recorded on Hodge’s chart that he blinked
and nodded as if to select the fourth photograph. That was
a picture of Dale “Ogami” Benjamin. Ogami was apparently
on the beach when the shooting occurred. The defendant’s
photograph was not in the array.
  On May 24, 2000, doctors had to operate on Hodge to
control massive bleeding in his stomach. During the
operation, the doctors determined that Hodge had an
abscess in his abdomen and pockets of infection in other
areas of his body. However, the peritonitis they had
previously diagnosed appeared contained, and his condition
improved enough for the hospital to make plans to apply for
Medicare coverage for him on May 25. That day, several
other police officers had Hodge again view a photo array.
This time, Lawrence’s picture was included as the fifth of
the six pictures in the array. The officers asked Hodge if his
assailant was pictured in the array, and they relied upon
his non-verbal interactions to interpret his response.
  The government subsequently argued that Hodge’s blinks
and nods in response to that inquiry were unresponsive to
the officers’ questions. However, the defendant would
subsequently argue that Hodge’s blinks and nods
amounted to an identification of the person depicted in
photograph number two as the assailant.
  Hodge finally lost his battle to stay alive on May 30, 2000
                                   5


after showing early signs of pneumonia and failing to
respond to treatment for multiple organ failure. Thereafter,
on May 31, 2000, Harrigan and Martin were separately
shown the same array of photographs that Hodge viewed on
May 25. Both identified Lawrence’s picture as being a
photograph of the person who shot Hodge. On a
subsequent day, Frederiksen also identified the defendant
as the shooter from the same array.1
   As noted above, the photo array consisted of six pictures,
and the pictures were all on the same page. The
characteristics of those depicted in the array were based on
information the police had previously gathered from
Harrigan about the shooter. The picture of the defendant
differed slightly from the other pictures in the array
because (1) it was an informal picture taken by a friend,
not a “mug shot,” so that the angle was different; (2) the
defendant wore a gold chain while the others pictured did
not; (3) the defendant was the only person not wearing a
shirt; and (4) the defendant was pictured with a more
pronounced smile than anyone else.2
  The defendant was arrested around June 13, 2000. One
of the men arrested at the same time had a gold Gucci
chain. Lawrence claimed the chain was his and asked
police to give it to his wife. Berenice Hodge later testified
that this chain was similar to chains worn by the victim.
  Prior to trial, Lawrence filed a motion to suppress the
photographic identifications by Harrigan, Frederiksen and
Martin. He also asked the court to bar any in-court
identification by any of those witnesses. Lawrence argued
that the array was impermissibly suggestive and that any

1. The officer showing the photo array had each identifying witness sign
his/her signature under the picture he/she selected as depicting the
shooter. However, police used computer generated duplicate copies of the
photo array so that no witness saw the signature of any other witness on
any of the photos. In addition, no witness was told whether anyone else
had identified any of the pictures in the photo array.
2. Although the defendant argues that he was the only one smiling in the
photo array, the district court viewed the photo array and found that
others were “showing teeth” though it does appear that the defendant’s
smile was more pronounced than anyone else’s in the photo array.
                                  6


subsequent in-court identification would therefore be
tainted by the substantial likelihood of misidentification.
Following a hearing in which the district court viewed the
photo array and heard testimony regarding the
circumstances        surrounding     the      photographic
identifications, the court denied the suppression motion.
The court ruled that the array was not impermissibly
suggestive because the individuals depicted in it had
reasonably similar facial features and characteristics. The
court also concluded that since each of the identifying
witnesses had an unobstructed opportunity to observe the
shooter before the incident without distraction, and since
Frederiksen and Harrigan both knew Lawrence before the
shooting, the likelihood of a misidentification from any
undue suggestion of the photo array was very remote.
   The government also filed a motion in limine to preclude
the defendant from admitting testimony regarding Hodge’s
reference to “Ogami” when Hodge was shown the
photographic array on May 20, and Hodge’s identification of
another person as the shooter in an array including
Lawrence on May 25.3 The government argued that the
“identifications” constituted hearsay, and that they were
also so ambiguous as to be meaningless. Lawrence
responded by insisting that the identifications constituted
dying declarations that were an exception to the hearsay
rule. He also argued that the identifications met the
standard of materiality under the residual hearsay
exception.
   The court granted the government’s motion and ruled
that Lawrence could not elicit evidence of Hodge’s reference
to “Ogami.” The court held that neither identification
constituted a dying declaration because the evidence did
not establish that Hodge believed he was dying at the time
of the declarations.4 The court also ruled that the videotape

3. The defendant’s motions to compel discovery and to dismiss the
indictment were also considered at this hearing.
4. The court actually granted the government’s motion pending
additional evidence regarding the circumstances and probative value of
Hodge’s reference to Ogami. However, during the trial the court
reaffirmed the ruling and prevented the defendant from alluding to
Hodge’s “identification” of Ogami.
                             7


recording of police presenting the photo array to Hodge on
May 25 was too unreliable to be received into evidence.
After viewing the recording during the hearing, the court
reasoned that Hodge was uncommunicative and confused,
and that any response he may have made to the photo
array was too ambiguous to suggest that he was attempting
to identify the shooter. The court also concluded that the
May 20 identification in the presence of Officer Rhymer was
not probative either because it was not clear whether Hodge
was asked to identify his shooter or just identify persons
who may have been on the scene and witnessed the
shooting. Although Ogami was apparently present when
Hodge was shot, there was no evidence to suggest he was
the shooter except for the inference Lawrence tried to force
from Hodge’s inconclusive reaction to the photo array.
  When Lawrence filed his witness list a few days before
the trial, the government filed another motion to preclude
several witnesses from testifying about Hodge’s responses
to the photographic arrays shown on May 20 and May 25.
The government argued that the court had already
prohibited the potential “identifications” Hodge purportedly
made, and the same reasoning that compelled that ruling
should preclude Lawrence’s attempt to elicit the same
testimony from others who were present when Hodge was
shown the photo array. The court agreed and granted the
government’s motion.
   Nevertheless, during cross-examination of a government
witness and again during Lawrence’s case-in-chief, defense
counsel tried to elicit what Berenice Hodge said her brother
told her at the hospital the day after the shooting. The
court rejected the defendant’s claim that these statements
constituted excited utterances and ruled that they were
hearsay that was not admissible as an “excited utterance”
under Fed. R. Evid. 803(2).
   Finally, during its case-in chief, the government
presented testimony from an expert from the FBI crime
laboratory who testified that bullet casings recovered from
the scene of the shooting were from a .38 caliber firearm.
However, he conceded on cross-examination that this type
of bullet could have been fired from a firearm that had been
                                  8


manufactured before 1898.5 The government introduced the
testimony of a second expert who also conceded on cross
examination that the weapon that fired the .38 caliber
bullet associated with the recovered casings could have
been manufactured before 1898.

                         II.   DISCUSSION

                    A.   The Identifications
  Lawrence argues that the district court erred in not
suppressing evidence of the photographic arrays and the
subsequent in-court identifications of the three government
witnesses to the shooting. He claims that the array was
unduly suggestive and prejudicial because: the photographs
were displayed all on one page rather than serially, it was
reproduced and shown to each witness with varying
degrees of color distortion and shading; and Lawrence was
the only one smiling, bare chested, and wearing jewelry. As
noted, the witnesses said that Hodge’s assailant stole some
gold chains and that Lawrence had similar jewelry when he
was arrested months after the shooting.
  We review the district court’s denial of Lawrence’s
suppression motion for an abuse of discretion. In re Merrit
Logan, Inc., 901 F.2d 349, 359 (3d Cir. 1990) (“The
admission or exclusion of evidence is a matter particularly
suited to the broad discretion of the trial judge.”).
   A due process violation can result when an identification
procedure is so suggestive that it undermines the reliability
of the resulting identification. Allowing a jury to consider an
identification that is tainted by such a procedure can
constitute reversible error entitling the defendant to a new
trial. Foster v. California, 394 U.S. 440, 442 (1969); see also
Neil v. Biggers, 409 U.S. 188, 196 (1972) (pre-trial
identification of a defendant is inadmissible at trial if the
identification was made at a confrontation that “was so
suggestive and conductive to irreparable mistaken
identification that the defendant was denied due process of
law.”). Accordingly, showing a witness a photographic array

5. We will explain the relevance of the 1898 date of manufacture below.
                                 9


can constitute a denial of due process when police attempt
to emphasize the photograph of a given suspect, or when
the circumstances surrounding the array unduly suggest
who an identifying witness should select. Simmons v. U.S.,
390 U.S. 377, 383 (1968). In evaluating the suggestiveness
of a photographic array we examine the totality of the
circumstances     to   determine     whether   the  array’s
suggestiveness denied the defendant due process. Neil, 409
U.S. at 199. However, the defendant has the burden of
proving that the identification procedure was impermissibly
suggestive. Reese v. Fulcomer, 946 F.2d 247, 259 (3d Cir.
1991).
   Here, the district court examined the entire array to
determine if it was unduly suggestive and concluded that
the defendant’s photograph did not stand out and that the
circumstances under which the array was presented did
not suggest his identity to any of the witnesses. Although
the array has not been made a part of the record on appeal,
it is evident from the defendant’s claims of error that the
court did not abuse its discretion.
   We can reject out of hand Lawrence’s attempt to suggest
that using an array consisting of six photographs
reproduced on a single page as opposed to presenting
individual pictures to witnesses serially would somehow
prejudice a defendant. To the contrary, it appears to us
that showing all of the photographs at once can be a very
fair way to proceed depending on all circumstances
surrounding the identification. Clearly, if the police had
shown each photograph separately, an issue would arise
about the defendant’s place in the array. If his was the first
photo shown, a defendant might argue that showing
his/her photo first was unfair. Similarly, a defendant could
argue that it is unfair to show his/her photo last, after a
witness has been unable to identify anyone else.6
  Moreover, it is undisputed that the distinguishing factors
Lawrence argues regarding his photograph can, for the
most part, be attributed to the fact that police had to use

6. We of course, take no position on the merits of such arguments. We
merely state them in order to demonstrate the weakness of Lawrence’s
attempt to find fault with presenting photos all at once.
                            10


a personal photo of him. The other photos were “mug
shots,” and Lawrence states that their appearance
suggested as much to the witnesses. However, we fail to see
how that would prejudice a defendant. On the contrary,
common sense suggests that a witness is less likely to
identify a personal photo than one appearing to be a “mug
shot” that would suggest a prior police record when
witnesses are asked to select a picture of a murderer.
   Although the defendant’s photograph was apparently the
only one depicting an individual not wearing a shirt and
wearing jewelry and these factors may have made it “stand
out,” they are not sufficient, given the totality of
circumstances here, to deny Lawrence due process because
the circumstances establish the reliability of the
identifications. As noted above, each of the government’s
witnesses had a clear, unobstructed opportunity to observe
the shooting, and Harrigan even spoke to the assailant
immediately before the shooting. All three witnesses had an
opportunity to view the assailant at close range and
nothing suggests that any of them had any trouble seeing
the shooting. There was also an adequate opportunity to
observe the shooter before any suggestion of violence when
witnesses would not have been distracted or frightened,
and powers of observation would not have been
compromised by the fear or excitement that a shooting
might generate. Harrigan and Fredericksen both had an
opportunity to observe the assailant in the calm
atmosphere that prevailed before the shooting. Most
importantly, however, both of those witnesses knew
Lawrence and had seen him on multiple occasions before
the shooting. Given the totality of those circumstances, the
district court clearly did not abuse its discretion in
admitting the photographic identifications or allowing the
witnesses to identify Lawrence in court.

    B.   The Court’s Exclusion of Hodge’s Purported
                     Identifications
  Lawrence claims that the district court also deprived him
of due process of law because it excluded the videotape of
Hodge’s response to the array of photographs he viewed on
May 25, 2000. Second, he argues that the court erred in
                             11


excluding Berenice Hodge’s testimony about the victim’s
statements to her on April 23, 2000. In a related claim,
Lawrence argues that the court also erred by failing to
explain that ruling. Finally, Lawrence argues that the court
deprived him of his Sixth Amendment right to confront
witnesses against him by preventing him from using
Berenice Hodge’s testimony as impeachment evidence on
cross-examination of a government witness.
  We review the district court’s exclusion of evidence for an
abuse of discretion just as we reviewed the court’s refusal
to suppress evidence. In re Merrit Logan, Inc., 901 F.2d at
359. We will address each claim in turn.

             1. The May 25, 2000 Videotape
  Lawrence argues that Hodge’s response when shown the
photo array on May 25 was admissible either as a dying
declaration or under the residual hearsay exception. We
disagree.
  A declarant’s statement identifying his/her assailant can
be admitted as an exception to the hearsay rule if the
declarant believes that he/she is facing imminent death.
However, in order for this “dying declaration” to be
admissible, the declarant “must have spoken with the
consciousness of a swift and certain doom.” Shepard v.
U.S., 290 U.S. 96, 100 (1933). Here, the district court
concluded that Lawrence had not established that either of
Hodge’s “identifications” were made while Hodge believed
death was imminent. The record supports that finding.
Hodge’s medical treatment was rigorous and undertaken
with the expectation that he would survive. Hodge was
never told by medical staff or police that he was going to
die. Although Hodge had to realize that he had extremely
serious injuries, doctors had been discussing the care he
would need following his release from the hospital and the
subsequent rehabilitation that everyone thought he would
have to undergo. Moreover, when Hodge finally succumbed
to his injuries on May 30, he had just recovered from major
surgery and appeared on the way to recovery.
  Moreover, he was shown the first array five days before
he died. In addition, it is uncontested that not only did no
                             12


one tell Hodge he was going to die because his death was
not expected, the nursing staff purposely tried to manifest
an upbeat attitude around him to help keep his spirits up.
Thus, the court correctly concluded that the evidence
simply did not allow the foundation necessary to admit
Hodge’s purported identification of “Ogami” as a dying
declaration.
  Similarly, the response Hodge gave on May 25 lacks the
necessary indicia of credibility to be admitted under the
residual exception to the hearsay rule embodied in Fed. R.
Evid. 807. That Rule states:
    A statement not specifically covered by Rule 803 or 804
    but having equivalent circumstantial guarantees of
    trustworthiness, is not excluded by the hearsay rule, if
    the court determines that (A) the statement is offered
    as evidence of a material fact; (B) the statement is more
    probative on the point for which it is offered than any
    other evidence which the proponent can procure
    through reasonable efforts; and (C) the general
    purposes of these rules and the interests of justice will
    best be served by admission of the statement into
    evidence.
  We have stated that “[t]he residual hearsay exception is
to be used only rarely, and in exceptional circumstances,
and is meant to apply only when certain exceptional
guarantees of trustworthiness exist and when high degrees
of probativeness and necessity are present.” Bohler-
Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79,
112 (3d Cir. 2001) (internal citations omitted).
  The district court viewed the videotape and concluded
that the blinks and nods Hodge allegedly made “in
response” to the photo array were simply too ambiguous to
constitute a meaningful statement. This means that
Hodge’s response to this array lacked the “circumstantial
guarantees of trustworthiness” necessary to be equivalent
to those categorized in the exceptions set forth in the
hearsay exceptions specified in Rules 803 and 804 of the
Federal Rules of Evidence. Accordingly, his response could
not meet the requirements embodied in Rule 807.
                             13


   Lawrence devotes a paragraph of his brief arguing that
“the refusal to admit defense evidence tending to inculpate
a third party has been found to be reversible error as long
as there is some connection between the suspected third
party and the crime with which the defendant is charged.”
Appellant’s Brief at 43. Lawrence cites United States v.
Stevens, 935 F.2d 1380, 1404-05 (3d Cir. 1991); and
Pettijohn v. Hall, 599 F.2d 476, 478 (1st Cir. 1979) to
support that proposition. Both Stevens and Pettijohn held
that a district court’s refusal to admit a second
identification for the factfinder to compare with a prior
identification was reversible error. However, it is not at all
clear that Hodge was actually identifying his assailant here.
The district court correctly concluded that it was just as
likely that Hodge was trying to tell police that “Ogami,”
whose photograph was included in the first array he was
shown, was at the scene when the shooting occurred.
Although it may have been preferable for the court to admit
that evidence for the jury’s consideration, we can not say
that the court abused its discretion in not doing so given
the strength of the identifications by Harrigan, Frederiksen
and Martin, and the ambiguity of Hodge’s response.

     2.   Hodge’s Statement to His Sister The Day
                   After the Shooting
  Lawrence also argues that the district court erred in not
admitting testimony by Berenice Hodge about the
decedent’s statements to her the day after the shooting. He
claims that the evidence was admissible as an excited
utterance. When Berenice Hodge first saw her brother at
the hospital, he was having trouble speaking, but he kept
repeating “Ogami” to his sister. When she repeated “Ogami”
back to him, he nodded his head “yes.” Hodge also said “T”
during this exchange.
  The district court initially rejected Lawrence’s claim of an
excited utterance when defense counsel first tried to elicit
the testimony during cross-examination of Sergeant Curtis
Griffin, asking him if Berenice Hodge identified any
suspects during his interview of her. After the government
objected, a conference occurred at side bar. R. 774-75A.
During that conference the court stated that testimony
                                  14


regarding what the witness told Berenice Hodge was double
hearsay and therefore inadmissible.7 However, defense
counsel contended that the statement should be admitted
as an excited utterance. The court rejected the argument.
Later, defense counsel tried again to admit this evidence
during its case-in-chief. However, the court again rejected
the claim explaining: “An excited utterance would be if [the
victim] talked to the [police officer at the scene of the
shooting] and said, ‘So and so shot me.’ ” The court noted
that the statement Lawrence was trying to elicit was a

7. The relevant court proceedings were as follows:
    Defense counsel: Did you interview the victim’s sister —
    Sergeant Griffin: Yes.
    Defense counsel: — during your investigation?
    Sergeant Griffin: Yes.
    Defense counsel: And during that interview, did an identified
    individual named —
    Government counsel: Objection, Your Honor.
    The Court: All right. Come to side-bar.
    (Side-bar discussion)
    Defense counsel: Your Honor, it is my intention to elicit from this
    witness that another person’s name was identified in connection to
    this crime, and not through the photo identification, but through
    the interview with his sister.
    The Court: Where did she get the information?
    Defense counsel: She got it from the victim. I’m not going to ask him
    where she got it from.
    Government counsel: That makes it triple hearsay, Judge.
    The Court: Double hearsay.
    Defense counsel: It is not the individual where the information came
    from. I don’t have to tell where the identified individual —
    The Court: You can ask him if he has investigated other suspects.
    You’re not going to get in the back door — the information was
    hearsay. The name would be definitely hearsay, it seems to me.
R.774A-75A.
                                   15


statement Hodge made to his sister after he was taken to
the hospital. His sister was the first family member to
speak with him.
   We agree that Hodge’s statement to his sister was not an
excited utterance under Fed. R. Evid. 803(2). That rule
allows hearsay to be admitted as an exception to the
hearsay rule if a declarant makes a statement relating to a
startling event while under the stress of excitement caused
by the event. However, the proffered statement must be
made as a result of and while the declarant’s utterance is
the direct result of the exciting event. See Fed R. Evid.
803(2), Advisory Committee’s Note. The district court
believed that too much time elapsed between the shooting
and the subsequent statement at the hospital to allow
Hodge’s mention of Ogami to qualify as an excited
utterance. The fact that Hodge waited until he was
speaking to a family member to utter the declaration
supports the court’s conclusion. It strongly suggests that
the statement was more the product of deliberation than an
overpowering and exciting event. Had the same statement
been uttered to the police at the scene under different
circumstances, it may well have constituted an excited
utterance. However, that is not what happened. Rather,
Hodge waited until the following day before he made the
disputed declaration.8 Accordingly, the district court did not
abuse its discretion in refusing to admit it.
  It must also be noted that if the court allowed defense
counsel to introduce this exchange with Berenice Hodge,
the government would have been able to also elicit
testimony that Hodge also whispered “T” in the same
exchange that he said “Ogami.” We fail to see how “Ogami”
can qualify as an excited utterance, but not “T.” That would
open the door to arguing that Hodge was attempting to
identify Lawrence. There is evidence that Lawrence is

8. We do not, of course, suggest that a statement that otherwise qualifies
as an excited utterance exception to the hearsay rule ceases to become
admissible simply because it is not made at the scene of the exciting
event. However, common sense suggests that the lapse of time, and
change of scene is relevant to determining the extent to which a
statement is spontaneous or the result of deliberation.
                               16


known as “Trini,” and “Tall Boy.” Given the totality of the
evidence here, the jury may well have concluded that Hodge
was referring to the defendant when he uttered “T.”
Accordingly, not only did the district court’s ruling not deny
Lawrence a fair trial, it is likely that it quite properly closed
a door that a skilled prosecutor would otherwise have been
likely to walk through.

         3.   Lawrence’s Sixth Amendment Right
                    Was Not Violated
  Lawrence also insists that the district court deprived him
of his Sixth Amendment right to confront witnesses by
excluding any reference to Berenice Hodge’s testimony
during cross-examination of police officers. Berenice Hodge
had told the police that her brother told her about Ogami
and “T” being involved. Lawrence argues that he sought to
introduce this evidence to contradict the testimony of other
government witnesses that only one person was responsible
for the fatal shooting. He argues that this testimony might
have changed the jury’s mind about key government
witnesses’ credibility, and it should therefore have been
admitted.
   The Sixth Amendment guarantees a defendant’s right to
confront witnesses. Cross-examination is an integral part of
that right and concomitantly, it is an important ingredient
in the fact-finding process. Davis v. Alaska, 415 U.S. 308,
315-16 (1974); Chambers v. Mississippi, 410 U.S. 284, 295
(1973). Accordingly, significant restrictions on a defendant’s
cross-examination of witnesses can amount to a violation of
the rights guaranteed under the Sixth Amendment.
Chambers, 410 U.S. at 295. However, the right to cross-
examine is neither absolute nor unbounded. Rather, it is
“tempered by the practical aspects of conducting a criminal
trial,” and “a reasonable limitation on cross-examination
will [therefore] not necessarily violate the Sixth
Amendment.” 27 James Wm. Moore et al., Moore’s Federal
Practice ¶ 643.02 (3d ed. 2003); see also Chambers, 410
U.S. at 295.
   Moreover, the right to cross-examine does not allow a
litigant to elicit testimony that is otherwise inadmissible.
                              17


Thus, hearsay evidence is not purged of those qualities that
make it hearsay merely because it is elicited on cross-
examination as opposed to direct examination. Fed. R.
Evid. 802 bars hearsay testimony from trial unless it fits
within one of the recognized exceptions that bear sufficient
indicia of reliability to merit the fact-finder’s consideration.
Here, the district court reasonably limited cross-
examination of police officers to prevent them from relating
that Berenice Hodge had told them about her brother’s
purported “identification” of “Ogami.” Lawrence wanted to
use those statements on cross-examination to develop the
existence of other suspects to the shooting and thereby
challenge the witnesses’ stated belief that a single person
was responsible for Hodge’s death. We have already
explained why the district court did not abuse its discretion
in precluding Berenice Hodge from testifying about those
statements. Her statements to police officers informing
them of what her brother said are inadmissible for all the
same reasons. In addition, her testimony about what the
victim told her constitutes double hearsay and the court
correctly concluded that it was not admissible under any
exception to the hearsay rule.

     C.   The Evidence Was Sufficient to Sustain a
           Conviction for First Degree Murder
  Lawrence contends that the evidence was not sufficient to
prove premeditation, and he therefore should not have been
convicted of murder in the first degree. The argument is
patently frivolous and we need only address it briefly.
   14 V.I.C. § 922 defines first degree murder as a deliberate
killing with premeditation. A premeditated killing is defined
as “one which has been planned and reflected upon by the
accused and is committed in a cool state of the blood, not
in sudden passion engendered by just cause of
provocation.” Government of the Virgin Islands v. Roldan,
612 F.2d 775, 781 (3d Cir. 1979), cert. denied, 446 U.S.
920     (1980)   (internal    citations  omitted).   However,
premeditation does not “require[ ] . . . that the accused
shall have brooded over his plan to kill or entertained it for
any considerable period of time. Although the mental
processes involved must take place prior to the killing, a
                                   18


brief moment of thought may be sufficient to form a fixed,
deliberate design to kill.” Id. Moreover, since it is impossible
to photograph the mental processes of a killer, and since it
is folly to expect that a killing will be explained by a killer’s
explanation of any specific intent accompanying the act,
circumstantial evidence is usually the only possible proof of
the mental processes involved. Government of the Virgin
Islands v. Charles, 72 F.3d 401, 410 (3d Cir. 1995).
   Here, the assailant specifically told Hodge, “It’s you I
come for,” and then shot him three times. One of those
bullets struck Hodge in the throat area, and one struck him
in the abdomen. Moreover, one of the shots was fired as
Hodge was stumbling backward in an apparent attempt to
flee. All of the shots were fired at extremely close range
from a .38. It can not seriously be argued that a reasonable
jury could not have been convinced beyond a reasonable
doubt that the shooter intended to kill Hodge given that
testimony.

         D.   The Evidence Was Sufficient to Prove
                the Weapon Was a “Firearm”
   Lawrence’s final contention is that the evidence was
insufficient to establish that the weapon involved was a
“firearm” for purposes of 18 U.S.C. §§ 922 and 924. He
relies on the fact that § 922 specifically excludes firearms
manufactured before 1898 from the definition of “firearms”
included under §§ 922 and 924. See 18 U.S.C. § 921(a)(3),
(a)(16) (2003).9 He notes that, not only did the government

9. 18 U.S.C. § 921(a)(3) defines the term “firearm” as it is used in 18
U.S.C. §§ 922 and 924(c) as:
    (A) any weapon (including a starter gun) which will or is designed to
    or may readily be converted to expel a projectile by the action of an
    explosive; (B) the frame or receiver of such a weapon; (C) any firearm
    muffler or firearm silencer; or (D) any destructive device. Such term
    does not include an antique firearm.
  The term “antique firearm,” as it is used in 18 U.S.C. § 921(a)(3), is
defined in Section 921(a)(16) as:
    (A) any firearm (including any firearm with a matchlock, flintlock,
    percussion cap, or similar type of ignition system) manufactured in
    or before 1898; or
                                   19


fail to introduce any evidence to establish that the gun that
was used was manufactured after 1898, but that the
government’s own experts specifically acknowledged the
possibility that the bullet fragments recovered from the
scene were fired by a weapon manufactured before that
date. Therefore, says the defendant, his convictions on
counts two and three cannot stand.10
   The government argues that the exception for antique
firearms in § 921 does not establish an additional element
that it must prove, but instead provides an affirmative
defense with the burden of proof on the defendant. Only
after the defendant presents some evidence that the firearm
was an antique, the government argues, does it have to
prove that the firearm was not an antique beyond a
reasonable doubt. Here, the defense presented no evidence
that the gun in question was an antique beyond raising the
possibility through the government’s experts. Although a
fact can certainly be established though cross-examination
as opposed to direct testimony, more is required than

    (B) any replica of any firearm described in subparagraph (A) if such
    replica—
    (I) is not designed or redesigned for using rimfire or conventional
    centerfire fixed ammunition, or (ii) uses rimfire or conventional
    centerfire fixed ammunition which is no longer manufactured in the
    United States and which is not readily available in the ordinary
    channels of commercial trade; or (C) any muzzle loading rifle, muzzle
    loading shotgun, or muzzle loading pistol, which is designed to use
    black powder, or a black powder substitute, and which cannot use
    fixed ammunition. For purposes of this subparagraph, the term
    “antique firearm” shall not include any weapon which incorporates
    a firearm frame or receiver, any firearm which is converted into a
    muzzle loading weapon, or any muzzle loading weapon which can be
    readily converted to fire fixed ammunition by replacing the barrel,
    bolt, breechblock, or any combination thereof.
(emphasis added in both quotes).
10. The government experts testified that the bullet fragments found in
Josh Hodge could have been expelled from a number of firearms,
including one antique firearm, the Top Break, manufactured by Iver
Johnson.
                              20


raising the specter of an ephemeral mathematical
possibility to create an issue of fact. Thus, the government
contends that Lawrence never established the affirmative
defense of the date of manufacture for it to rebut.
   We agree that the government can not be expected to
engage in the litigational equivalent of shadow boxing by
jabbing and striking at shadowy inferences that may arise
from the ethers of testimony. Yet, Lawrence’s position as to
the government’s burden of establishing the date of
manufacture of a weapon that was never recovered would
lead us down that road. Every circuit court of appeals that
has considered this issue has agreed that establishing that
a weapon is an “antique firearm” for purposes of §§ 921 and
922 is an affirmative defense that must initially be raised
by sufficient evidence to justify shifting a burden of proof to
the government.
   In United States v. Mayo, 705 F.2d 62, 73-76 (2d Cir.
1983), the court examined the legislative history of
§ 921(a)(3) and concluded that it allowed a defendant to
raise the affirmative defense that he/she used an antique
firearm when charged with violating 18 U.S.C. § 922. The
court held that this did not create an additional element for
the government to prove in order to win a conviction under
the applicable statutes. Rather, using the Supreme Court’s
definition of an affirmative defense as a bar to a crime that
“does not serve to negative any facts of the crime,” the
Mayo Court found that the language in § 921 established
an affirmative defense because one weapon could satisfy
both the broad definition of firearm in § 921(a)(3) as well as
the narrow exception for antique firearms in § 921(a)(16).
Id. at 75 (quoting Patterson v. New York, 432 U.S. 197,
206-07 (1977)). This legislative scheme reflects Congress’s
policy of controlling the traffic in firearms, which is “a
significant factor in the prevalence of lawlessness and
violent crime in the United States.” Id. at 75-76 (internal
citations omitted). Yet, in enacting this scheme, Congress
clearly did not want to penalize or burden legitimate
collectors of firearms or restrict their access to valuable
antiques. However, requiring the government to prove that
a given weapon was manufactured after a given date when
the weapon has not been recovered would make law
                             21


enforcement more difficult and thwart the policy           of
controlling the illegal firearms market. Id. at 76.
   The court in United States v. Laroche, 723 F.2d 1541,
1543 (11th Cir. 1984) reached the same conclusion. There,
Laroche challenged his convictions under §§ 922 and 924
because the government failed to prove that the firearms
involved were not antique firearms as defined by § 921. He
claimed this statutory exception was an element of the
offense that the government was required to disprove. Id.
The court disagreed and followed the analysis of Mayo
instead. See also U.S. v. Williams, 979 F.2d 186, 187 (11th
Cir. 1992) (per curiam) (stating that the antique weapons
exception in § 921 is an affirmative defense that must be
raised by the defendant before the burden of disproving an
antique weapon shifts to the government, citing Laroche).
  The Court of Appeals for the Sixth Circuit followed
Laroche and Mayo in United States v. Smith, 981 F.2d 887,
891-92 (6th Cir. 1992). There the court held that the
defense contained in § 921 was an affirmative one that is
waived if not raised by the defendant. Since Smith had not
raised that defense at either his plea or sentencing, the
court held that he had waived it and the government was
under no obligation to establish that the weapon involved
was manufactured after 1898.
  These cases were followed by the Court of Appeals for the
Eighth Circuit in United States v. Washington, 17 F.3d 230,
232 (8th Cir. 1994). The court there concluded that the
government did not have to establish that the weapon
involved was manufactured after 1898 because the
defendant presented no evidence about this issue. Id.
  We agree. Based on the text of the statute, and the
Congress’s purpose of deterring trafficking in firearms while
protecting the interests of legitimate antique weapons
collectors, we hold that the exemption for antique firearms
contained in § 921(a)(16) is an affirmative defense that
must be raised by defendant and supported by some
evidence before the government has to prove the contrary
beyond a reasonable doubt.
   Here, Lawrence established only the possibility that the
firearm that fired the bullets that killed Hodge could have
                             22


been manufactured before 1898. Since it was never
recovered, there was no way of determining when it was
manufactured. Accordingly, the evidence established only
that the gun was manufactured at some point before it was
used to kill Hodge; that is hardly a remarkable revelation.
However, there was no evidence to suggest that the firearm
actually was manufactured before 1898. This was not
enough to carry his burden of raising the affirmative
defense, which requires “sufficient evidence to raise the
exception as an issue.” Laroche, 723 F.2d at 1543; see also
U.S. v. Washington, 17 F.3d at 232. Accordingly, we hold
that the evidence was sufficient to sustain his convictions
under counts two and three of the indictment.

                       Conclusion
  For the reasons set forth above, we will affirm the
judgment of the District Court.

A True Copy:
        Teste:

                  Clerk of the United States Court of Appeals
                              for the Third Circuit
