                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-1998

United States v. Mitchell
Precedential or Non-Precedential:

Docket 97-1295




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Recommended Citation
"United States v. Mitchell" (1998). 1998 Decisions. Paper 113.
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Filed May 14, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-1295

UNITED STATES OF AMERICA

v.

BYRON MITCHELL,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 96-cr-00407)

Argued January 21, 1998

Before: SLOVITER, LEWIS* and GARTH, Circuit Judges

(Opinion filed May 14, 1998)

       Robert Epstein (ARGUED)
        Assistant Federal Defender
       Elaine DeMasse
        Assistant Federal Defender
        Senior Appellate Counsel
       Maureen Kearney Rowley
        Chief Federal Defender
       Federal Court Division
       Defender Association of Philadelphia
       Philadelphia, PA 19106

        Attorneys for Appellant
_________________________________________________________________

*Judge Lewis heard argument in this matter but was unable to clear
the opinion due to illness.
       Michael R. Stiles
        United States Attorney
       Walter S. Batty, Jr.
        Assistant United States Attorney
        Chief of Appeals
       Paul A. Sarmousakis (ARGUED)
        Assistant United States Attorney
       Philadelphia, PA 19106

        Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this case, we must examine whether there is any basis
to justify the introduction into evidence of an anonymous
note that was plainly hearsay. Appellant Byron Mitchell,
who was convicted of conspiracy to commit and
commission of Hobbs Act robbery, in violation of 18 U.S.C.
S 1951, and use of and carrying a firearm during a crime of
violence, in violation of 18 U.S.C. S 924(c), contends that
the district court committed reversible error by permitting
an anonymous note linking him to the getaway car to be
admitted into evidence as a present sense impression, an
excited utterance, or a statement containing sufficient
indicia of reliability under the residual catch all exception
previously sited in Federal Rule of Evidence 803(24).

I.

The facts which appear not to be disputed are that
between 9:00 a.m. and 9:15 a.m. on September 12, 1991
two men waited in a check cashing store at 29th and
Girard Avenue in North Philadelphia, when an armored
truck made a delivery of currency to the store. The
assailants were armed with handguns and attacked the
delivery man as he entered the store, robbing him of
currency in excess of $20,000. The two men fled the scene
in a beige car driven by a third person, and engaged in
gunfire with those in the armored truck before they sped

                                 2
away. There was evidence that the two men who robbed the
agency were William Robinson and Terrance Stewart, both
dead at the time of trial. Mitchell was indicted on the theory
that he was the third conspirator and operator of the
getaway car.

During trial, the police officers testified that at 9:37 a.m.
on September 12, 1991 the 911 radio room received an
anonymous call in which the caller stated: "[I]n the 1660
block . . . of 32nd street, these guys just dumped this beige
car. Apparently, they stole it [be]cause they jumped into
another car and took off." The caller also gave the license
plate number of the deserted car, which turned out to be
the beige getaway car that had been seen at the scene of
the robbery. That car had been stolen shortly before the
robbery at a gas station not far from the site of the robbery.

At 10:00 a.m., based on the 911 call, police officers found
the beige car where the 911 caller had stated it was. A
search by FBI agents recovered latent fingerprints and two
anonymous notes from the front seat. One note contained
the license plate number of the getaway car itself, ZPR-274,
and is not challenged on appeal.1 The other note, which is
the subject of this appeal, stated: "Light green ZPJ-254.
They changed cars; this is the other car." A check on the
light green car revealed that it was a green 1978 Buick
registered to Anita Young, then fiancee and later wife of
defendant Mitchell.

That afternoon, an FBI agent who was part of a
surveillance unit searching for that car observed Mitchell
park the green Buick and enter Young's house. He exited
shortly thereafter and drove away, with the agent following
him. When the agent had grounds for a stop because of
traffic violations, he searched Mitchell who was carrying
$1,400 dollars in small bills. He also had a receipt from a
lawyer for a $600 payment in cash which was made earlier
that day.
_________________________________________________________________

1. Although Mitchell does not challenge the admissibility of the 911 call
or the note containing only the tag number of the getaway car, he argues
that they too were erroneously admitted into evidence for the same
reason as was the note indicating the switch of cars.

                               3
In addition to the testimony about the note referencing
the light green car that led the authorities directly to
Mitchell, the government presented testimony from Kim
Chester, the girlfriend of Robinson, one of the other two
robbers, who testified that in early September she
overheard the three men discuss the robbery and discuss
who had a gun and the need to get a car for the robbery.
She further testified that while she was waiting for a bus on
the morning of September 12, 1991, Robinson, Stewart and
Mitchell drove by in Anita Young's green car and picked
Chester up before 8:00 a.m. and drove her to work. While
in the car, she heard them discussing how to obtain a
getaway car, and heard Mitchell say he was not going to
use Young's car for that purpose.

The government also presented testimony of Duane
Johnson, an FBI agent specializing in fingerprint analysis,
who testified that there were nine points of similarity
between two of the fingerprints found in the getaway car
and those taken from Mitchell. One fingerprint was on the
outside door handle and the other was on the gear shift of
the car. Agent Johnson conceded that it was common to
have up to one hundred points of comparison when
identifying an individual by fingerprint, but stated that he
had made identifications on as little as seven.

Except for the testimony of Eileen Lamper, who testified
that Mitchell was friends with one of the other robbers
(thus supporting Chester's testimony), the other witnesses
did not inculpate Mitchell per se; they established that the
crime did happen, how it happened, and how it was
investigated.

Mitchell sought exclusion of the anonymous note and
certain other evidence before trial. He contended that the
note was inadmissible hearsay and that its admission
violated the Confrontation Clause of the Sixth Amendment.
The district court overruled the objections, and the note
was admitted. Mitchell was convicted by the jury on each
count, and was sentenced to 24 years imprisonment, three
years of supervised release, a special assessment of $150,
and was ordered to pay restitution in the amount of
$19,100.00.

                                4
We have jurisdiction over this direct appeal pursuant to
28 U.S.C. S 1291.

II.

The district court held that the anonymous note
referencing the light green car was admissible as an
exception to the hearsay rule as a present sense impression
or an excited utterance or under the catch all exception in
section 803(24) of the Federal Rules of Evidence. Our
standard of review is plenary, both because we are
considering whether the district court correctly interpreted
the Federal Rules of Evidence and relevant case law, see
United States v. Pelullo, 964 F.2d 193, 199 (3d Cir. 1992)
("[t]o the extent the district court's admission of evidence
was based on an interpretation of the Federal Rules of
Evidence our standard of review is plenary") and because
Mitchell's challenge implicates the Confrontation Clause,
see Government of the Virgin Islands v. Joseph, 964 F.2d
1380, 1385 (3d Cir. 1992).

A.

Present Sense Impression and Excited Utterance

Federal Rule of Evidence 803(1) provides that a present
sense impression is admissible so long as it is"a statement
describing or explaining an event or condition made while
the declarant was perceiving the event or condition, or
immediately thereafter." Fed. R. Evid. 803(1) (emphasis
added). There are three principal requirements which must
be met before hearsay evidence may be admitted as a
present sense impression: (1) the declarant must h ave
personally perceived the event described; (2) the declaration
must be an explanation or description of the event rather
than a narration; and (3) the declaration and the event
described must be contemporaneous. See 5 J. McLaughlin,
Weinstein's Federal Evidence S 803.03 (2d ed. 1997); 2 J.
Strong, McCormick on Evidence S 271 (4th ed. 1992).

To qualify as an excited utterance, the Rule requires that
it be "[a] statement relating to a startling event or condition

                               5
made while the declarant was under the stress of
excitement caused by the event or condition." Fed. R. Evid.
803(2). The requirements for a hearsay statement to
constitute an excited utterance are: (1) a startli ng occasion,
(2) a statement relating to the circumstances of t he
startling occasion, (3) a declarant who appears to have had
opportunity to observe personally the events, and (4) a
statement made before there has been time to reflect and
fabricate. See 6 J. Wigmore, Evidence SS 1750-51 (J.
Chadbourne rev. 1976).

Both Rules 803(1) and (2) share certain requirements.
One of the principal requirements is that the declarant
personally perceived the event or condition about which the
statement is made. See Miller v. Keating, 754 F.2d 507, 511
(3d Cir. 1985) (personal perception a key element to the
excited utterance exception); Bemis v. Edwards, 45 F.3d
1369, 1372-73 (9th Cir. 1995) (stating same for both the
present sense impression and excited utterance exceptions).
In addition, both hearsay exceptions have temporal
limitations which limit admissibility of certain statements.
See Bemis, 45 F.3d at 1372.

Mitchell's principal challenge to the admission of the
anonymous note is that there is no evidence that the
person who wrote the note personally perceived what it
described. In support, Mitchell cites our opinion in Miller,
754 F.2d at 511, which presented facts similar to those
here, as the statement at issue was anonymous.

In Miller, we stated that "[a] party seeking to introduce
[an anonymous statement] carries a burden heavier than
where the declarant is identified to demonstrate the
statement's circumstantial trustworthiness." Miller, 754
F.2d at 510. We further emphasized: "circumstantial
evidence of the declarant's personal perception must not be
so scanty as to forfeit the `guarantees of trustworthiness'
which form the hallmark of all exceptions to the hearsay
rule." Id. at 511.

In Miller, the trial court admitted a statement of an
unidentified bystander at the scene of an automobile
accident. Contradictory testimony was provided as to whose
fault the accident was. Plaintiff sought the admission of the

                               6
statement of the unidentified person who said, "the bastard
cut in," and sought by that statement to establish that the
accident was caused by the actions of defendant. Id. at 509.

On appeal we reversed, holding that admission of the
anonymous statement was erroneous because the record
was "empty of any circumstances from which the trial court
could have inferred, by a preponderance, that the declarant
saw [the defendant] `cut in.' " Id. at 511 (emphasis added).
We found the trial court erred in inferring personal
perception on the ground that the declarant would have
made the declaration only if he was in a position to do so.
Instead, we stated that the words of the statement, or the
circumstances surrounding the event, "do not show more
likely than not that the declarant saw the event." Id.
Inasmuch as it was equally likely that the unidentified
declarant was "hypothesizing or repeating what someone
else had said," id., the statement was inadmissible as an
excited utterance.

Miller is dispositive here. Although the government
argues that "[a] common sense reading of the note suggests
that the person writing the note was perceiving the event
and in close proximity," appellee's br. at 14, the record here
is devoid of circumstances indicating by a preponderance
that the author of the anonymous note actually saw
Mitchell change cars. Thus, the requirement of personal
perception necessary for both the present sense impression
and excited utterance exceptions to the hearsay rule is not
satisfied.

In light of our conclusion, the issue of the temporal
limitations of the exceptions is less critical. Nonetheless, we
note that there is also no evidence to suggest that the
unidentified writer of the note made the statement before
s/he had time to reflect and fabricate. The time lapse
between the robbery and the writing of the note is not clear.
Because the robbery occurred between 9:00 a.m. and 9:15
a.m. and the notes were found in the getaway car a mile
away from the scene of the robbery at approximately 10:00
a.m. there could have been a 40 minute time span,
probably too long for applicability of the present sense
exception. Therefore, the government cannot rely on a
hearsay exception which requires the statement to be made

                               7
virtually contemporaneously with the event being perceived.
See, e.g., 2 Michael H. Graham, Handbook of Federal
Evidence S 803.1 (4th ed. 1996) ("the theory underlying the
present sense impression is that substantial
contemporaneity minimizes unreliability due to defective
recollection or conscious fabrication").

Of course, if the writer and the 911 caller were the same,
and the notes were left shortly before the 911 call at 9:37,
the temporal limitation might have been satisfied. See
McCurdy v. Greyhound Corporation, 346 F.2d 224, 226 (3d
Cir. 1965) (statement admissible under the excited
utterance exception even though it was made ten or fifteen
minutes after an accident); United States v. Blakey, 607
F.2d 779 (7th Cir. 1979) (holding admissible a statement
made up to 23 minutes after it was observed as a present
sense impression), overruled in part on other grounds, Idaho
v. Wright, 497 U.S. 805 (1990). However, given the total
lack of information regarding the circumstances of the
note's creation, the trial court could not reasonably find
that there was no time to fabricate the statement.

We note that there are other problems as to admission of
the note as an excited utterance. There was no indication
that the author was under the stress of excitement when
s/he wrote the note (or when the 911 call was made), a
requirement of the excited utterance exception."The
assumption underlying the hearsay exception of Rule 803
(2) is that a person under the sway of excitement
temporarily loses the capacity of reflection and thus
produced statements free of fabrication." Miller, 754 F.2d at
512. Further, there is no evidence that the parking of the
beige car was a shocking or exciting event.

For all of the above reasons, we feel bound to conclude
that it was error to introduce the anonymous note as either
a present sense impression or an excited utterance
exception to the hearsay rule.

                               8
B.

The Residual Catch All Exception

The district court also held that the anonymous note was
admissible under the residual exception to the hearsay
rule, which at the time of trial was found in Fed. R. Evid.
803(24) and which was transferred to new Rule 807
effective December 1, 1997. There was no substantive
change in the transfer, and we will refer to the Rule as it
was when considered by the district court. Rule 803(24)
provides that a statement not specifically covered by any of
the traditional hearsay exceptions is admissible if the court
determines that the statement is offered as evidence of a
material fact, there is no other obtainable evidence on the
issue that is more probative, that the interests of justice
will be served by its admission, and that the record reflects
"equivalent circumstantial guarantees of trustworthiness" for
the reliability of the statement. Fed. R. Evid. 803(24).2

The legislative history of Rule 803(24) indicates that
Congress " `intended that the residual hearsay exceptions
will be used very rarely, and only in exceptional
circumstances.' " S. Rep. No. 93-1277, Committee on the
Judiciary, reprinted in 28 U.S.C.A., Fed. R. Evid. 803,
Historical Note, at 276. Furthermore, the statement must
not only meet the rigors of the Federal Rules of Evidence,
_________________________________________________________________

2. As presently framed, Rule 807 provides:

       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 mate rial 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 o f these rules
and
       the interests of justice will best be served by admission of the
       statement into evidence. However, a statement may not be admitted
       under this exception unless the proponent of it makes known to the
       adverse party sufficiently in advance of the trial or hearing to
       provide the adverse party with a fair opportunity to prepare to
meet
       it, the proponent's intention to offer the statement and the
       particulars of it, including the name and address of the declarant.

                               9
but also of the Confrontation Clause of the Sixth
Amendment. Finally, the Supreme Court has determined
that such statements are " `presumptively unreliable and
inadmissible for Confrontation Clause purposes.' " Idaho v.
Wright, 497 U.S. 805, 818 (1990) (quoting Lee v. Illinois,
476 U.S. 530, 543 (1986)).3

Although the hearsay rule and the Confrontation Clause
protect similar values, see id. at 814, the Confrontation
Clause has a broader reach barring the admission of some
evidence that would otherwise be admissible under
exceptions to the hearsay rules. See California v. Green,
399 U.S. 149, 155-56 (1970). Before a statement will be
admissible, the prosecution must show that "it bears
adequate `indicia of reliability.' " Wright, 497 U.S. at 814-15.
The "indicia of reliability" requirement can be met if the
hearsay statement either falls within a firmly rooted
hearsay exception or if it is supported by a showing of
"particularized guarantees of trustworthiness." Ohio v.
Roberts, 448 U.S. 56, 66 (1980).

By definition, the residual hearsay exception is not a
firmly rooted hearsay exception. See Joseph , 964 F.2d at
1386-87 (citing Wright, 497 U.S. at 817). The district court
found the requisite trustworthiness from other evidence it
considered to be corroborating, i.e., by "the locating of the
fingerprints of defendant Mr. Mitchell, and his operating
the described vehicle [ ] in a short distance away from th[e]
area at a later point that afternoon." App. at 652. In so
finding, the district court erred as a matter of law because
"under the Confrontation Clause, hearsay evidence used to
convict a defendant must possess indicia of reliability by
virtue of its inherent trustworthiness, not by reference to
other evidence at trial." Wright, 497 U.S. at 822. "[T]he use
of corroborating evidence to support a hearsay statement's
`particularized guarantees of trustworthiness' would permit
admission of a presumptively unreliable statement by
bootstrapping on the trustworthiness of other evidence at
_________________________________________________________________

3. The Confrontation Clause of the Sixth Amendment, made applicable to
the states through the Fourteenth Amendment, provides: "In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted
with
the witnesses against him." U.S. Const. amend. VI.

                               10
trial." Id. at 823. Cf. United States v. Bailey, 581 F.2d 341,
349 (3d Cir. 1978) (corroborating evidence could not satisfy
requirement of "equivalent guarantees of trustworthiness"
under residual hearsay exception). The theory supporting
admissibility is that "the declarant's truthfulness is so clear
from the surrounding circumstances that the test of cross-
examination would be of marginal utility." Wright, 497 U.S.
at 820. As the Supreme Court noted, the presence of
corroborating evidence "more appropriately indicates that
any error in admitting the statement might be harmless,
rather than that any basis exists for presuming the
declarant to be trustworthy." Id. at 823 (internal citation
omitted).

Mitchell argues that evaluation of the trustworthiness of
the anonymous note reveals that the circumstances
surrounding its creation do not possess sufficient
guarantees of trustworthiness permitting its admission into
evidence. As he points out, the government failed to
produce any evidence as to who authored the note or the
circumstances under which it was written. Thus, the
government failed to meet its burden of showing that cross
examination of the author of the note would have been of
marginal utility to Mitchell.

The circumstances to which the government points to
show particularized guarantees of trustworthiness are all
other facts proven at trial, i.e. that the getaway car used in
the robbery was found where the 911 caller claimed and
that the caller stated that the people in the getaway car
drove off in another car. These are not circumstances
surrounding the making of the note and, under the holding
of Idaho v. Wright, cannot be used to support admission of
the evidence. We must therefore conclude that the
admission of the anonymous note failed also to meet the
requirements of the residual catch all hearsay exception
and its incorporation of the Confrontation Clause, and was
error.

III.

Harmless Error

Not all error is reversible. We must therefore decide
whether the erroneous admission of the anonymous note

                               11
into evidence constituted harmless error. Although the
admission of inadmissible hearsay constitutes
nonconstitutional error and is reviewed under a lesser
standard than when constitutional error is made, see
Lippay v. Christos, 996 F.2d 1490, 1500 (3d Cir. 1993);
Government of the Virgin Islands v. Toto, 529 F.2d 278,
283-84 (3d Cir. 1976), in this case we must apply the
standard which governs constitutional errors as set forth in
Chapman v. California, 386 U.S. 18 (1967). Under this
standard, the government must demonstrate "beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained." Id. at 24. It is the
government's burden of persuasion on whether an error is
harmless, an issue the government failed to address in its
brief.

Mitchell argues that the note could not be considered
harmless because it constituted the government's most
powerful piece of evidence, as it was the one thing that led
the police directly to him. He then argues that the
testimony provided by the fingerprint expert, although
damaging, could not have been the basis of the jury's
decision because it was questioned by the jury, and the
testimony of Kim Chester was unreliable. Mitchell therefore
asserts that the anonymous note must have contributed "in
some manner" to the jury's decision to convict.

Although we may not accept Mitchell's characterization of
the note as the "most powerful" evidence, we cannot
disregard its effect. There were problems with the evidence
on which the government relies. The FBI agent who testified
at trial conceded that the latent fingerprints found in the
beige getaway car were in a "fragile" and "erode[d]"
condition. App. at 342a, 453. He based his opinion of the
match on a finding of only nine points of similarity between
these prints and the prints taken from Mitchell at the
station house. He further testified that the fewest points of
similarity that he had ever previously based an opinion
upon was seven and that he had never heard of anyone
basing an opinion upon fewer. Moreover, while the jurors
were deliberating, they sent a note to the judge that they
were "struggling with . . . agent Johnson's testimony about
fingerprints." App. at 653.

                               12
The testimony of Chester was certainly incriminating, but
on cross examination, Chester conceded that she was a liar
and a thief and that, at the time of the robbery, she used
drugs. This prompted the district court to instruct the jury
that Chester's testimony was to be considered with caution
and careful scrutiny. App. at 600-01. Although $1,400 was
found on Mitchell when he was arrested, those bills could
not be linked to the money stolen at the check cashing
store because those serial numbers had not been recorded
by the armored car company. Also, although there is some
indication from the parties' briefs that Young gave
incriminating statements against Mitchell during the
investigation of the robbery, her testimony was not elicited
at trial because she claimed her marital privilege, having
married Mitchell a month after the robbery.

In light of the legitimate questions raised as to the
remaining evidence admitted at trial, we are compelled to
conclude that although there was circumstantial evidence
corroborating the anonymous note, the government has not
demonstrated beyond a reasonable doubt that the
admission of the note did not contribute to the jury's
verdict.

IV.

For the reasons set forth, we will vacate the judgment of
Mitchell's conviction and remand to the district court for a
new trial.

A True Copy:
Teste:

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

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