                             NONPRECEDENTIAL DISPOSITION
                      To be cited only in accordance with Fed. R. App. P. 32.1




                   United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604
                               Argued October 30, 2008
                              Decided November 12, 2008


                                           Before
                            FRANK H. EASTERBROOK, Chief Judge
                            KENNETH F. RIPPLE, Circuit Judge

                            JOHN DANIEL TINDER, Circuit Judge

No. 08-1298
                                                              Appeal from the United
UNITED STATES OF AMERICA,                                     States District Court for the
      Plaintiff-Appellee,                                     Central District of Illinois.
              v.                                              No. 07-40044
DYRRELL KEMON MCC OY,                                         Joe Billy McDade, Judge.
     Defendant-Appellant.

                                            Order
   A jury convicted Dyrrell McCoy of possessing a handgun despite a prior conviction
that made it unlawful for him to own firearms. 18 U.S.C. §§ 922(g), 924(a)(2). He was
sentenced to 51 months’ imprisonment and presents four arguments on appeal.
    The lead argument concerns the testimony of Clotea Hudson, McCoy’s girlfriend.
According to Hudson, McCoy arrived at Hudson’s mother’s house (where Hudson was
living) in the early morning hours of February 9, 2007. Hudson testified that McCoy
was in distress, sweating and unresponsive. She called Vernon Lee, with whom McCoy
had been drinking, and explained the situation. Next Hudson called McCoy’s sister Ti-
ara, who discovered (on reaching Hudson’s house) that McCoy was not breathing. A
call to 911 led to prompt and effective medical help—and to the discovery of a handgun
under the couch on which the two women had placed McCoy. Hudson’s mother (and
her mother’s boyfriend) testified that they had never seen the gun before, did not own
a gun, and did not allow guns in the house.
   Hudson told inconsistent stories about how the gun got under the couch: in one
version McCoy removed the gun from his waistband and hid it under the couch, and in
another Hudson moved the gun to prevent its detection. Hudson testified at trial that
she had put McCoy’s gun under the couch. Fearing that Hudson would be impeached
on the basis of her inconsistent statements that McCoy himself secreted the gun, the
No. 08-1298                                                                          Page 2

prosecutor asked Hudson about the other statements and why she had changed her
story. Defense counsel objected—for bringing out the nature of the inconsistency also
allowed the jury to learn that, in every version of the story, McCoy had been toting a
gun. Counsel observed that prior consistent statements may be introduced only to
overcome a claim of recent fabrication, see Fed. R. Evid. 801(d)(1), and that if Hudson
was lying—if, for example, the gun belonged to her rather than to McCoy—all of her
statements post-dated the motive to deceive. But the judge overruled the objection,
stating that because the defense planned to bring out the inconsistent portions of Hud-
son’s story it was inevitable that the jury would learn the consistent portions too.
    At oral argument McCoy’s lawyer conceded that he did plan to impeach Hudson by
eliciting that the details of her story varied over time. He contended that it would have
been possible to do this while keeping the consistent aspects of Hudson’s story from
the jury’s attention. But we do not see how it is possible to tell the jury that Hudson said
different things about who removed the gun from McCoy’s waistband and put it under
the couch, without allowing the jury to learn that in each version the gun started out in
McCoy’s waistband. The prosecutor would have been entitled to put the statements in
context even if the defense tried to make it seem that the weapon had been produced
from thin air. So whether or not the district judge erred by allowing the prosecutor to
bring out the consistent portions of the story on direct examination, any error was
harmless; the jury would have learned the consistent aspects as soon as the defense
highlighted the inconsistent portions.
    Lee testified about his brief phone conversation with Hudson. According to Lee,
Hudson said that McCoy was having an asthma attack, and “I told her to call the ambu-
lance, and then she stated that he had a gun, and I told her to take it from him and call
them before he died.” Used for the truth of the proposition that McCoy did have a gun,
the assertion attributed to Hudson is hearsay. Relying on Fed. R. Evid. 803(2), the dis-
trict court overruled a hearsay objection. The Rule permits testimony “relating to a star-
tling event or condition made while the declarant was under the stress or excitement
caused by the event or condition.” The judge thought that Hudson was under stress
caused by McCoy’s difficulty in breathing (and perhaps by the presence of a gun).
    McCoy’s appellate brief contended that, because McCoy had yet to stop breathing,
Hudson could not have been startled and under stress. At oral argument, however,
counsel effectively conceded that the district court did not abuse its discretion in think-
ing that Hudson was under the stress of a startling event. Primary responsibility for de-
ciding how much stress is enough to support this exception to the hearsay rule is com-
mitted to the district judge, not the court of appeals.
   On cross-examination, McCoy’s lawyer asked Lee whether he had been interviewed
by a federal agent on August 8, 2007. This question was designed to set up a contention
that Lee’s description of the phone conversation had varied over time. (According to
the agent’s report, “HUDSON told LEE she thought MCCOY had a gun on him and did
not know what else.” This reflects less certainty on Hudson’s part than the version of
the conversation that Lee related at trial.) On the prosecutor’s objection, the district
judge told counsel that the Jencks Act, 18 U.S.C. §3500, forecloses reference to the re-
port unless Lee adopted its contents.
     McCoy observes on appeal, and correctly, that the Jencks Act does not apply. It de-
lays disclosure of a witness’s prior statements to federal agents until the witness has tes-
tified, but that condition was met. Yet the district judge’s main point, though inartfully
phrased, was that counsel needed to establish that Lee really had said what the agent
attributed to him. The agent’s report was not a verbatim transcript, and it had not been
No. 08-1298                                                                         Page 3

signed by Lee. So counsel needed to show—either by Lee’s admission or the agent’s
testimony—what Lee actually had said, as opposed to the agent’s impression or con-
densation. At this point defense counsel let the matter drop.
    The judge was right to observe that an agent’s impression is not necessarily the
same as an interviewee’s statement. It is evident that this is what the judge meant when
referring to the Jencks Act, because decisions implementing that statute distinguish
agents’ summaries from witness’s actual statements; a summary is treated as a “state-
ment” within the scope of the Act only if adopted by the witness. It would have been
better for the judge not to mention the Jencks Act when making the point that im-
peachment was possible only if the report accurately reflected Lee’s statement. Invoca-
tion of that statute had the potential (perhaps realized) to misdirect attention. Still, an
oral give-and-take cannot be conducted with the precision of a written opinion. The fact
remains that the foundation for cross-examination was not completed.
    McCoy’s final argument is that the court should have granted his motion for a new
trial. His lawyer says that evidence gathered after trial shows that Hudson was a drug
dealer, and he suggests that perhaps Hudson herself possessed the gun in order to pro-
tect herself while conducting that business. The district court concluded, however, that
the evidence to which McCoy adverts does not imply that Hudson sold drugs. The un-
derlying evidence shows that someone suspected of dealing drugs gave Hudson some
cocaine to hide when the police approached. The district judge did not err in concluding
that this is some distance from showing that Hudson would have carried a gun to pro-
tect her own supply of drugs, so the judge did not abuse his discretion in denying the
motion for a new trial.
                                                                                AFFIRMED
