
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1624                                    UNITED STATES,                                      Appellee,                                          v.                                   THOMAS BARTELHO,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                _____________________               Christopher W.  Dilworth, by  Appointment of the  Court, for               ________________________          appellant.               Margaret D.  McGaughey,  Assistant United  States  Attorney,               ______________________          with whom Jay P.  McCloskey, United States Attorney,  and Richard                    _________________                               _______          W. Murphy,  Assistant United States  Attorney, were on  brief for          _________          appellee.                                 ____________________                                   December 5, 1995                                 ____________________                    TORRUELLA,  Chief  Judge.   Defendant-appellant  Thomas                    TORRUELLA,  Chief  Judge.                                ____________          Bartelho ("Bartelho") challenges his conviction for possession of          a firearm  by a convicted felon  under 18 U.S.C.     922 and 924.          After  a jury trial in  the United States  District Court for the          District of Maine, Bartelho was sentenced  on May 26, 1995 to 120          months incarceration.  We affirm his conviction.                                    I.  BACKGROUND                                    I.  BACKGROUND                    Viewed in  the light most favorable  to the government,          United States  v. Robles, 45 F.3d 1,  2 (1st Cir.), cert. denied,          _____________     ______                            ____________          115 S. Ct.  1416 (1995), a reasonable  jury could have  found the          following facts.                    At  about 9:20  a.m.  on Saturday,  July  2, 1994,  the          Windham  Police  Department  received  a call  from  Lori  Daigle          ("Daigle"), the resident of  the first floor apartment in  a two-          unit  residence  on Route  115 in  Windham.   Daigle  reported an          ongoing disturbance in  the upstairs unit.   Bartelho, who  lived          with  his girlfriend  Patricia  Harris ("Harris")  and their  two          young  children,  rented  that  apartment  (the  "Harris-Bartelho          apartment").  Daigle  stated to  the dispatcher that  one of  her          upstairs neighbors, Harris, had complained to her at 2:00 a.m. of          being  assaulted by  her boyfriend,  identified then  as "Tommy."          Daigle also told the dispatcher that Harris had asked her to take          her  to the hospital.   Furthermore, Daigle  reported that Harris          expressed fear for her  18-month-old child, and that "Tommy"  had          chased her  down  the road  with  a loaded  rifle.   Daigle  also                                         -2-                                         -2-          explained  to the dispatcher that she had not heard the boyfriend          leave, and so he must still have been upstairs.                    Four  Windham  police officers  were dispatched  to the          scene.  Meanwhile, dispatcher John Perruzzi tried to reach Harris          by phone  in  the Harris-Bartelho  apartment.   Finding the  line          busy,  he had  the  phone company  break  in, and  upon  reaching          Harris, convinced  her to walk out  of the building  to talk with          the officers waiting outside.                    Harris  spoke  to  Sergeant David  Thomas  and  Officer          Raymond Williams.   Officer Williams told Harris  that the police          were  responding  to a  report that  she  had been  assaulted and          threatened with a  firearm.  Harris answered that  she had had an          argument  with  her boyfriend  but that  he  had left  30 minutes          previously.  The officers observed that Harris'  eyes were puffy,          that  she appeared  nervous,  and that  she  would not  make  eye          contact  with  them.   In  accord  with  their domestic  violence          training,  the  officers  concluded  that Harris  was  protecting          Bartelho, possibly  out of fear of reprisal.  In view of Daigle's          report, they did not believe Harris' statement, and instead asked          for her permission to  enter the Harris-Bartelho apartment, which          she denied.                    Sergeant  Thomas then  told  Harris  that the  officers          would  enter  the  apartment  without her  permission.    Several          factors persuaded  the officers to conduct  a warrantless search,          including their belief that Harris was lying to protect Bartelho,          Daigle's statement  that Bartelho remained in  the apartment, the                                         -3-                                         -3-          fact that Route 115 is a busy highway where the  town's Fourth of          July  parade  was  about to  begin,  and  the  presence of  other          dwellings  nearby.  As they later  testified, they concluded that          if the defendant were allowed to remain in the apartment, a large          number of people would be exposed to the risk of harm.                    Officer  Williams  and   Sergeant  Thomas  climbed  the          stairway  that   led  to  the  Harris-Bartelho  apartment's  main          entrance.   They entered the unlocked front door and searched the          premises.  Officer Williams checked the back porch, from which an          enclosed  stairway  leading to  the  ground  level constituted  a          second escape route from  the apartment.  Officers on  the ground          watched  both exits  as the  search took  place.   After Sergeant          Thomas and Officer  Williams failed  to find the  suspect in  the          apartment,  Officer   Williams  checked   the  back  porch   more          carefully, and noticed a  loaded semiautomatic rifle on top  of a          stove  on  the porch.   Officer  Williams  looked down  the porch          stairway,  and  called out  the  name  "Tommy," whereupon  Thomas          Bartelho emerged from his hiding place below.                    On July  6, 1994, a warrant was  executed authorizing a          search  of the  Bartelho-Harris  apartment for  evidence of  bank          robbery.  Part of the basis  for the warrant was the FBI's belief          that  the weapon  found  during the  earlier, warrantless  search          ("the July 2  search") was the same as the one that had been used          in a series of  bank robberies.  Pursuant to the warrant, another          search  was  conducted on  July 7  ("the  July 7  search"), which                                         -4-                                         -4-          turned up additional items including a quantity of ammunition and          a stock and case for a rifle.                                         -5-                                         -5-                                   II.  DISCUSSION                                   II.  DISCUSSION                    On appeal,  Bartelho contends that four  issues require          that  we  overturn his  conviction.   First,  he argues  that the          government  failed to prove that his firearm civil rights had not          been restored, as he asserts  it was required to do.   Second, he          contends  that the  district court  wrongly denied his  motion to          suppress  evidence found during the  July 2 and  July 7 searches.          Third, he claims  that the district court's jury  procedures were          improper.   Fourth,  and finally,  he asserts  that the  district          court erred  in allowing  testimony  that he  threatened to  kill          Harris.                    A.   Restoration of Felon Firearm Civil Rights                    A.   Restoration of Felon Firearm Civil Rights                    Bartelho  appeals  his   conviction  under  18   U.S.C.            922(g)(1) (1994), which provides that it is unlawful for anyone          "who has  been convicted in  any court of  a crime punishable  by          imprisonment for a term exceeding one year . . . to possess . . .          any  firearm."   Bartelho's  last conviction  before the  instant          crime was in 1990, when he  served one year of a five-year prison          sentence.    As  noted in  the  facts,  the  police discovered  a          semiautomatic  rifle during  their search of  the Harris-Bartelho          apartment  in  close  proximity  to  the  place  where they  also          discovered  defendant-appellant  Bartelho,   and  at  trial   the          government  presented  Harris'  taped  pretrial   statement  that          Bartelho had threatened her while holding this weapon.                    According to  Bartelho,  the district  court  erred  in          denying his  motion  to dismiss,  which  contended (1)  that  the                                         -6-                                         -6-          government was required to prove that his right to bear arms  had          not been  restored by the State of Rhode Island, and (2) that the          government  failed  to carry  this  purported  burden.   Bartelho          reiterates  this argument on appeal.  The argument depends on his          interpretation of  18 U.S.C.    921(a)(20) (1994),  which defines          the term "crime punishable  by imprisonment for a term  exceeding          one year" in   922(g)(1) as follows:                         What constitutes a conviction  of such                      a crime shall be determined in accordance                      with the law of the jurisdiction in which                      the   proceedings   were   held.      Any                      conviction  which  has been  expunged, or                      set aside or for  which a person has been                      pardoned or has had civil rights restored                      shall  not be considered a conviction for                      purposes  of  this  chapter, unless  such                      pardon,  expungement,  or restoration  of                      civil rights expressly provides  that the                      person may not ship,  transport, possess,                      or receive firearms.          Bartelho  argues  that  because  Rhode Island  has  provided  for          possible  restoration of his civil  right to carry  a firearm, to          convict him under   922(g)(1), the government bears the burden of          showing  that  such restoration  has  not  occurred.   In  short,          Bartelho proposes that we treat this showing as an element of the          offense.                    We reject  Bartelho's argument because we conclude that          a showing that the right to carry a firearm has not been restored          is not an element of a    922(g) violation.  In United States  v.                                                          _____________          Ramos,  961 F.2d 1003, 1006 (1st Cir.  1992), we read   922(a)(1)          _____          to require proof of three elements:                    (1)that the accused is a convicted felon;                    (2)who knowingly possessed a firearm;                                         -7-                                         -7-                    (3)which   was   connected  with   interstate                    commerce.          Id. at 1006;  see also United  States v. Flower, 29 F.3d 530, 534          __            ________ ______________    ______          (10th  Cir. 1994) (citing United  States v. Shunk,  881 F.2d 917,                                    ______________    _____          921  (10th Cir. 1989)); United States v. Sherbondy, 865 F.2d 996,                                  _____________    _________          1001-03 (9th Cir. 1988).                    While neither    921(a)(20) nor   922(g)(1)  explicitly          describes  the role that the    921(a)(20) definition should play          or  specifies who  must initially  raise or  ultimately  bear the          burden  of  proof  on  the issue  of  the  predicate conviction's          continuing vitality,  we conclude that    921(a)(20) is  merely a          legal definition for the phrase "conviction  for a term exceeding          one year" in   922(g)(1).   Indeed, the title to 18 U.S.C.    921          is  "Definitions."   Furthermore,    921(a)(20)  begins with  the          words "[t]he term  'crime punishable by  imprisonment for a  term          exceeding one year'  does not  include," and is  followed by  two          exceptions.  Thus,    921(a)(20)  serves to narrow  the class  of          prior convictions down to a smaller class of convictions that may          serve as predicate  convictions under    922(g)(1).   To treat             921(a)(20)  as a  legal  definition accords  with the  approaches          taken explicitly by  two other  circuits,  see  United States  v.                                                     ___  _____________          Jackson, 57 F.3d 1012, 1016 (11th  Cir. 1995); Flower, 29 F.3d at          _______                                        ______          534;  United States v. Clark, 993  F.2d 402, 406 (4th Cir. 1993),                _____________    _____          and implicitly  by several others, see United  States v. Frushon,                                             ___ ______________    _______          10 F.3d 663, 665-66 (9th Cir. 1993); Martin v. United States, 989                                               ______    _____________          F.2d 271,  273 (8th  Cir.),  cert. denied,  114 S.  Ct. 475,  126                                       ____________                                         -8-                                         -8-          L.Ed.2d 426 (1993); United  States v. Cassidy, 889 F.2d  543, 545                              ______________    _______          (6th Cir. 1990).                    We are  persuaded by the  approach of United  States v.                                                          ______________          Flower.   The significance of    921(a)(20)'s definitional nature          ______          is that the trial judge  bears the responsibility of  determining          as a matter of law whether  a prior conviction is admissible in a            922(g)(1)  case.   Flower, 29  F.3d at  535.   Under Bartelho's                               ______          proposed rule, the  government would be required to  refute every          possibility  that  criminal  defendants   have  had  their  prior          convictions  nullified or  their civil  rights restored.   Rather          than require  the government to  show a negative  proposition, we          reject Bartelho's  interpretation.   It is certainly  much easier          for criminal defendants to raise the issue of whether their prior          convictions have  been nullified or their  civil rights otherwise          restored.  Id.1                     __                                        ____________________          1  We note in passing that the only circuit to have held that the          government must prove the  "continuing validity" of a defendant's          previous conviction,  United States  v. Essick,  935 F.2d 28,  31                                _____________     ______          (4th  Cir. 1991),   has  recently clarified,  and limited,  their          previous conclusion in a manner instructive for the present case.          See United States v. Thomas, 52 F.3d 82, 85 (4th  Cir. 1995); see          ___ _____________    ______                                   ___          also United States v. Clark,  993 F.2d 402, 406 (4th Cir.  1993).          ____ _____________    _____          In  Thomas, the court limited Essick's holding, by ruling that it              ______                    ______          did not apply  to circumstances  where the  underlying state  law          automatic  restoration provision  could not  normally  have taken          effect  because  the defendant  had  a  prior conviction  falling          within the statutorily prescribed period.  Thomas, 52 F.3d at 85.                                                     ______          Bartelho  urges that  we  follow Essick  and  adopt its  original                                           ______          holding.  But Essick  has been limited  by the court that  issued                        ______          it,  and  in  such a  manner  that  would  not benefit  Bartelho.          Bartelho was most recently  convicted only four years before  the          instant offense;  Rhode Island law  requires that ten  years must          pass  after  completion of  a conviction  before a  defendant can          initiate the expungement process  by which Bartelho's civil right          to carry  a firearm could have been restored.  See R.I. Gen. Laws                                                         ___               12-1.3-2(a),  12-1.3-3(b)(1)  (1956).    Furthermore,  while                                         -9-                                         -9-                    A claim of restoration of civil rights is in the nature          of an  affirmative defense.   As  a result,  once a prior  felony          conviction and  corresponding loss of  civil rights is  proven by          the  government,  as  with   any  other  factual  condition,  the          presumption is that that condition remains.  See Jackson, 57 F.3d                                                       ___ _______          at  1016  ("[W]here  affirmative  defenses  are  created  through          statutory exceptions, the ultimate  burden of persuasion  remains          with the prosecution, but  the defendant has the burden  of going          forward with  sufficient evidence  to raise  the exception  as an          issue.") (quoting  United States v. Laroche, 723  F.2d 1541, 1543                             _____________    _______          (11th Cir.),  cert. denied, 467 U.S.  1245 (1984)).  It  is up to                        ____________          the defendant  to raise the  issue and  produce evidence  showing          that   changed  circumstances   make   the   original   condition          inapplicable.  See Jackson, 57  F.3d at 1017; Flower, 29 F.3d  at                         ___ _______                    ______          535.  Defendant has not done so here.                    Thus, upon de novo review, see,  e.g., United States v.                               __ ____         ___   ___   _____________          Three Juveniles, 61  F.3d 86,  87 (1st Cir.  1995) (reviewing  de          _______________                                                __          novo issues  of interpretation  of federal criminal  statute), we          _____          find no  error of law, since  the government was not  required to          show  the validity  of his past  conviction in  order to  prove a          violation of   922(g)(1).                    B.   The Motion to Suppress                    B.   The Motion to Suppress                                        ____________________          Bartelho contends  that the government was required  to show that          he had  not been  pardoned, see  R.I. Const. art.  IX,    13, and                                      ___          thereby  had his civil rights restored, he cites no authority for          this  proposition  other  than  Essick,  which  as  noted  above,                                          ______          actually  involved  an  automatic restoration  provision,  not  a          discretionary  expungement or pardon.  At any rate, we decline to          adopt the rule that Bartelho proposes.                                         -10-                                         -10-                    With  respect to  the motion to  suppress, we  review a          district court's  findings  of fact only for clear error.  United                                                                     ______          States  v. Mart nez-Molina,  64  F.3d 719,  726 (1st  Cir. 1995).          ______     _______________          Questions of law, however, are  subject to de novo  review.  Id.;                                                     _______           __          United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994).            _____________    ______                    Prior to trial, Bartelho moved to suppress the evidence          garnered  in both  the July 2  warrantless search and  the July 7          search, which  he contended  was tainted  by the  use of  July 2-          obtained  evidence to  procure the  warrant used.   Based  on the          facts presented at the  evidentiary hearing, the magistrate judge          recommended  that the district  court deny Bartelho's suppression          motion, and the district court did so.  The district court  found          that  (1)  the  officers  had  probable  cause  to  believe  that          contraband  or evidence would  be found  inside, and  (2) exigent          circumstances  justified their  entry without  first obtaining  a          warrant.                    On  appeal,  Bartelho argues  that  the  district court          erred  by ruling that the  July 2 search  and subsequent seizures          were constitutionally  protected.  He contends  that the evidence          found in the July 2 search should be excluded because  the police          did  not have  probable cause  to enter  the apartment,  and that          there were no "exigent  circumstances" to excuse their lack  of a          warrant.   Furthermore, he  argues that evidence  gathered in the          July  7 search  constitutes  "fruit of  the  poisonous tree"  and          should  also be suppressed.   See Wong Sun  v. United States, 371                                        ___ ________     _____________          U.S. 471, 487-88 (1962).                                         -11-                                         -11-                    First, we address Bartelho's  contention that there was          insufficient  probable cause  to support  the officers'  entrance          into the Harris-Bartelho apartment.  Probable cause to  conduct a          search  exists when "given all the circumstances, there is a fair          probability that  contraband  or evidence  will be  found in  the          place  described."  United States v.  Moore, 790 F.2d 13, 15 (1st                              _____________     _____          Cir. 1986),  cited in United States  v. Wilson, 36  F.3d 205, 208                       ________ _____________     ______          (1st Cir.  1994).  The determination  of probable cause is  to be          made by evaluating  the totality of the  circumstances facing the          police.  See  Illinois v. Gates, 462 U.S. 213, 238 (1983); United                   ___  ________    _____                            ______          States v. Garc a, 983 F.2d 1160, 1167 (1st Cir. 1993).          ______    ______                    Bartelho argues  that the  police should not  have been          allowed to rely on  Daigle's statement that he  was still in  the          Harris-Bartelho apartment.  He argues that because  Daigle was in          her apartment  together with small  children, she could  not have          known  whether  he  had left  via  the  back  stairs, which  were          detached from  the building and enclosed.   Furthermore, Bartelho          cites Harris'  statement to  the police  that he was  not in  the          building as evidence that they did not have probable cause.                    Bartelho's  arguments are not persuasive.  The district          court  was  not  required  to  accept  the  contention  that  the          placement  of the back staircase made it impossible for Daigle to          know  if Bartelho had left.   The officers  testified that Daigle          was adamant  that Bartelho  was still  there.   Furthermore,  the          officers  were  not required  to take  Harris' statement  at face          value,  especially given  their  domestic-abuse training.    See,                                                                       ___                                         -12-                                         -12-          e.g., United  States v.  Taylor, 985 F.2d  3, 6  (1st Cir.  1993)          ___   ______________     ______          (weighing  officers'  experience  in  determination  of  probable          cause);  see also United States  v. Henry, 48  F.3d 1282, 1284-85                   ________ _____________     _____          (D.C.  Cir. 1995)  (upholding protective  sweep despite  the fact          that girlfriend told police her boyfriend had left).  We conclude          that  the evidence  regarding the  totality of  the circumstances          supported  the district  court's conclusion  that  probable cause          existed for the police  to believe Bartelho was still  present in          the apartment, and we find no  clear error.  See United States v.                                                       ___ _____________          Wilson, 36  F.3d 205,  209  (1st Cir.  1994) (reviewing  district          ______          court's   factual   findings,   especially  witness   credibility          determinations, for  clear error); United  States v. Baldacchino,                                             ______________    ___________          762 F.2d 170, 175 (1st Cir. 1985).                    Second, we address the critical limitation that "[e]ven          when  supported by  probable  cause, warrantless  entries into  a          person's home are per se unreasonable unless justified by exigent                            ___ __          circumstances."  Moore, 790 F.2d at 15; see also  Wilson, 36 F.3d                           _____                  ________  ______          at 208.  Bartelho argues that sufficient evidence did not support          the district court's finding that exigent circumstances justified          the officers' warrantless search.                    To determine whether there is an exigency sufficient to          justify a warrantless  search and seizure,  the test is  "whether          there is such a compelling necessity for immediate action as will          not brook the  delay of  obtaining a warrant."   Wilson, 36  F.3d                                                           ______          205, 209 (1st  Cir. 1994)  (quoting United States  v. Adams,  621                                              _____________     _____          F.2d  41, 44  (1st  Cir. 1980));  see  also Hegarty  v.  Somerset                                            _________ _______      ________                                         -13-                                         -13-          County, 53 F.3d  1367, 1374  (1st Cir. 1995).   This  necessarily          ______          fact-based  inquiry, Wilson,  36 F.3d  at 209,  requires that  we                               ______          consider factors including the gravity of the underlying offense,          whether a  delay would  pose a  threat  to police  or the  public          safety,  and whether there  is a  great likelihood  that evidence          will be destroyed if the search is delayed until a warrant can be          obtained.   Wilson, 36 F.3d  at 209-10; Baldacchino,  762 F.2d at                      ______                      ___________          176.                     Bartelho  contends that  the  district  court erred  in          finding   that  exigent  circumstances  justified  the  officers'          warrantless  search.   In  particular,  he  emphasizes that  John          Perruzzi,  the dispatcher, found the telephone  line busy when he          called;  that Harris  had already  exited the  building  when the          officers  arrived; and that  she provided  no confirmation  of an          assault,  the  existence of  a  firearm,  or Bartelho's  presence          inside  the Harris-Bartelho  apartment.   According to  Bartelho,          these  facts rebut  the district  court's finding  that requisite          exigent circumstances existed.                    The facts  that Bartelho cites do not  compel a finding          that  exigent circumstances  did not  exist.   Bartelho tries  to          argue that Perruzzi interrupted  Harris in the middle of  a phone          call, and so  the police should have  decided that all was  well.          However,  we  must  review  evidence as  a  whole,  including all          reasonable  inferences,  in  the  light  most  favorable  to  the          government.   See, e.g.,  United States v.  Robles, 45  F.3d 1, 2                        ___  ___    _____________     ______          (1st  Cir. 1994), cert. denied,  114 S. Ct.  731, 126 L.Ed.2d 694                            ____________                                         -14-                                         -14-          (1994).   A busy  signal would be  consistent not  only with  the          possibility  that Harris was making  a phone call,  but also with          the reasonable  inference that Bartelho  had taken the  phone off          the  hook.  Moreover, as we have previously discussed, the police          were not required to take Harris' statements at face value, given          her demeanor,  their training  regarding  domestic violence,  and          Daigle's report.                    We  conclude that  the district  court  did not  err in          finding  the  requisite  exigent circumstances.    Several  facts          address the reasons that this court has previously emphasized  in          determining whether exigent circumstances exist.  The police were          summoned by a caller  who identified herself, lending credibility          to the report, and  reported that a woman was being threatened by          a man with a loaded  rifle, certainly a grave offense.   See 17-A                                                                   ___          M.R.S.A.   1252(4) (1983 &  Supp. 1994) (increasing penalties for          crimes if a "dangerous weapon" is used); see also L pez, 989 F.2d                                                   ________ _____          at 26  (considering presence of  a firearm used  in assault  as a          factor  in upholding  warrantless search).   Other  facts suggest          that delay would have risked public safety.  The scene was near a          busy highway  that was on the route  of a soon-to-begin Fourth of          July parade.  Besides the parade, there were also other dwellings          nearby.   Furthermore, Bartelho may  well have known from Harris'          conversation with  the dispatcher, or from  looking outside, that          the police were waiting for him.  By waiting, the police may have          risked an  ambush.  See United  States v. L pez, 989  F.2d 24, 26                              ___ ______________    _____          (1st Cir. 1993) (noting that police are allowed to consider their                                         -15-                                         -15-          own safety).  Moreover,  any normal delay in obtaining  a warrant          might  have been  exacerbated  by the  holiday.   Guided  in  our          inquiry by  this court's  previously adopted rubric,  these facts          lead  us  to uphold  the  district  court's  finding  of  exigent          circumstances.                    Because we uphold the district court's finding that the          July 2 search was  legal, we do not consider  Bartelho's argument          that the July 7 search warrant was tainted by illegality.                    C.   Jury Procedures                    C.   Jury Procedures                    Bartelho also  argues that the district  court erred by          refusing  to  discharge  the  jury  panel  after  another  case's          indictment, involving the same model of firearm and  an identical          witness, had already been  read to the panel during voir dire and          jury  selection.  According to Bartelho, these facts may have led          the  jury  to  associate him  with  the  defendant  who faced  an          unrelated trial on a more serious charge.  Bartelho contends that          he was thus denied a fair trial.                    In empaneling a jury,  a district court has a  "duty to          determine the question of actual bias, and [] broad discretion in          its rulings  on challenges therefor."   Dennis v.  United States,                                                  ______     _____________          339 U.S. 162,  168 (1950);  see also Kotler  v. American  Tobacco                                      ________ ______     _________________          Co., 926 F.2d 1217, 1228 (1st Cir.  1990) (in absence of manifest          ___          juror  prejudice, "we will  not set aside  a  judge's  actions in          empaneling a  jury which [the  judge] reasonably considers  to be          suitable  and impartial").  We review a trial judge's exercise of          discretion  in empaneling a jury  for "clear abuse."   See, e.g.,                                                                 ___  ___                                         -16-                                         -16-          United States v.  McCarthy, 961  F.2d 972, 976  (1st Cir.  1992);          _____________     ________          United States v. Ploof, 464  F.2d 116, 118 n.4 (2d Cir. 1972).          _____________    _____                    Although we have been unable to find any cases squarely          on point, prior cases in this circuit that address related issues          lead  us  to reject  Bartelho's argument.    In United  States v.                                                          ______________          Carranza, 583 F.2d 25  (1st Cir. 1978), we adopted  the following          ________          rule:                      unless  a  specific  showing  of  bias or                      prejudice is made, the fact that a  juror                      sat in  a prior  case involving  the same                      government witnesses and the same type of                      crime   will   not    be   grounds    for                      disqualification   per   se  unless   the                                         ___   __                      defendant  is  charged  with  an  offense                      arising from the same transaction.          Id.  at 28.   Here, Bartelho has  not made a  specific showing of          ___          bias or prejudice.   Furthermore, unlike in  Carranza, his jurors                                                       ________          neither heard  the witnesses  nor  saw the  evidence against  the          other defendant.  Additionally, Bartelho's charge (being a felon-          in-possession)  and the  other relevant defendant's  charge (bank          robbery)  were  not  the  same  type  of  crime.    Finally,  the          similarities between Bartelho's case and  the one with which  his          jury was empaneled are insufficient.  See, e.g., United States v.                                                ___  ___   _____________          Morales-D az,  925  F.2d  535,  537 (1st  Cir.  1991)  (rejecting          ____________          argument  of bias  based on  several jurors'  prior service  in a          different case involving another Hispanic drug defendant).  Thus,          Bartelho  has  considerably  less  basis  for  an  allegation  of          prejudice  than the  defendant in  Carranza, who  also failed  to                                             ________          persuade  this court.   We note  in passing  that this  court has          previously  emphasized  the  importance   of  caution  under  the                                         -17-                                         -17-          Carranza rule in addressing challenges that threaten the judicial          ________          economy of  multiple empanelment based on  the negligible adverse          effects  of this system when  properly handled, as  here.  United                                                                     ______          States v. Maraj, 947 F.2d 520, 525 (1st Cir. 1991).          ______    _____                    For these reasons, we find that the  district court did          not abuse its discretion by not discharging the panel.                                         -18-                                         -18-                    D.   Harris' Testimony on Bartelho's Death Threats                    D.   Harris' Testimony on Bartelho's Death Threats                    Lastly,  Bartelho  challenges   the  district   court's          decision to allow Harris to testify that Bartelho  had threatened          to  kill her.   On  relevance grounds,  Bartelho objected  to the          government's questioning of Harris on redirect regarding  whether          Bartelho  had threatened to kill  her, but the  court allowed the          testimony.    Citing  Federal  Rule of  Evidence  403,2  Bartelho          argues that although the  death threat may have been  relevant as          to   motive,  such   testimony   was   highly  inflammatory   and          prejudicial.   He contends that this  testimony thereby increased          the  likelihood of  a  conviction based  on  emotion rather  than          facts, thus denying him of a fair trial.                    The  balancing of  probative value  against prejudicial          impact under  Rule 403 will not be disturbed on appeal as long as          the  trial  court  "does not  stray  entirely  beyond  the pale."          United States v. Rodr guez-Estrada,  877 F.2d 153, 156  (1st Cir.          _____________    _________________          1989) (quoting United States  v. Tierney, 760 F.2d 382,  388 (1st                         _____________     _______          Cir. 1985)).  We review  the trial court's ruling only  for abuse          of discretion, see Tierney, 760 F.2d at 388, bearing in mind that                         ___ _______          the limitations  of Rule 403 are to  be "rarely invoked."  United                                                                     ______          States v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1984).          ______    _____                                        ____________________          2  It is not entirely clear from the record that a Rule 403 issue          has  been preserved  for appeal.   The  government contends  that          Bartelho  tacitly  waived  a Rule  403  objection  via his  later          objections.  Nonetheless, the ambiguity is irrelevant here, since          we  do not consider the  issue of waiver,  as Bartelho's argument          fails on other grounds.                                         -19-                                         -19-                    We uphold  the district  court's decision to  allow the          testimony.   Harris  was the  only government  witness who  could          testify  that Bartelho  actually had  physical possession  of the          weapon.  In fact, before trial she had so testified, and had been          recorded on tape.  However, at trial she denied that Bartelho had          had a gun.   Given that  she was the best  witness to one  of the          elements  of the  crime  of  felon-in-possession,  evidence  that          Bartelho had  previously threatened her life  was highly relevant          to the jury's decision whether to credit her taped version of the          facts or her conflicting trial testimony.  Furthermore, only  the          fact  that Harris  told others  about the  threats was  elicited;          there were no sensational details.  Thus,  we  conclude that  the          district  court did  not abuse  its discretion  in  admitting the          evidence of the threats.                    For the foregoing reasons, the judgment of the district          court is affirmed.                   affirmed.                   ________                                         -20-                                         -20-
