
USCA1 Opinion

	




          December 23, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1731                                 KENT A. SIEGFRIEDT,                                Petitioner, Appellant,                                          v.                                    MICHAEL FAIR,                                Respondent, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                              _________________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                              _________________________               Brownlow M.  Speer, with  whom Committee for  Public Counsel               __________________             _____________________________          Services was on brief, for appellant.          ________               Pamela L. Hunt, Assistant  Attorney General, with whom Scott               ______________                                         _____          Harshbarger, Attorney General, was on brief, for appellee.          ___________                              _________________________                              _________________________                    SELYA,  Circuit  Judge.   Petitioner-appellant  Kent A.                    SELYA,  Circuit  Judge.                            ______________          Siegfriedt  seeks appellate  review  of an  order  of the  United          States  District  Court   for  the   District  of   Massachusetts          dismissing  his application for habeas  relief.  See  28 U.S.C.                                                             ___          2241-2254  (1988).  The issue  presented on appeal  is nominal in          the  classic sense.  We  must determine whether  the admission at          trial   of  an  unavailable  witness's  tape-recorded  testimony,          originally  adduced at  a  probable cause  hearing, violated  the          defendant's constitutional  rights because the  witness testified          under  a  pseudonym.   Finding  no  constitutional shortfall,  we          affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    Because the Massachusetts Supreme Judicial  Court (SJC)          has painstakingly traced the lay of the land, see Commonwealth v.                                                        ___ ____________          Siegfriedt, 402 Mass.  424, 522  N.E.2d 970 (1988),  it would  be          __________          pleonastic  to recount  the facts  in great  detail.   We provide          instead only the bare minimum necessary to place the petitioner's          appeal into workable perspective.                    Siegfriedt  was charged  with arson.   At  the probable          cause  hearing,  an  individual   known  as  Christopher   Martel          maintained under oath  that Siegfriedt forewarned him of the fire          and accurately predicted its approximate time of outbreak.  After          Martel withstood cross-examination  at the hands of  petitioner's          counsel, the court found probable guilt.                    By the  time petitioner's  case was reached  for trial,                                          2          Martel's whereabouts were a mystery.  A diligent search failed to          locate  him but revealed a previously unknown fact:  although the          witness had gone by the name of Christopher Martel, his true name          was  Albert Ciccarelli,  Jr.   The  presiding judge  nevertheless          admitted Martel/Ciccarelli's  tape-recorded testimony, originally          delivered  at  the  probable  cause  hearing,  into  evidence  at          petitioner's trial.1   Thereafter,  the judge allowed  petitioner          to  impeach the declarant's credibility.  To that end, petitioner          called two witnesses,  including Martel/Ciccarelli's brother, who          testified anent the declarant's parlous reputation for veracity.                    The jury found Siegfriedt guilty.  The SJC affirmed the          conviction.  Siegfriedt then sought habeas redress.   The federal          district court  spurned his application but  issued a certificate          of probable cause under 28 U.S.C.   2253.  This appeal ensued.                                         II.                                         II.                                         ___                                  Standard of Review                                  Standard of Review                                  __________________                    Petitioner    contends    here,    as   he    contended          unsuccessfully  below,   that  his  constitutional   rights  were          abridged when the state court admitted Martel/Ciccarelli's  prior          recorded testimony into evidence.  This contention evokes a mixed          question  of  law  and  fact.    Under  the presently  prevailing          standard, "mixed" constitutional questions are subject to plenary          review  in federal habeas  proceedings.  See  Chakouian v. Moran,                                                   ___  _________    _____          975 F.2d 931, 934  (1st Cir. 1992); see  also Miranda v.  Cooper,                                              ___  ____ _______     ______                                        ____________________               1Siegfriedt's first trial resulted in a hung jury.  We refer          here,  and below, only to  the second trial,  at which petitioner          was found guilty.                                          3          967  F.2d 392,  401  (10th Cir.)  (affording  de novo  review  to                                                        __ ____          district  court's   decision   concerning  adequacy   of   cross-          examination in state criminal case), cert. denied, 113 S. Ct. 347                                               _____ ______          (1992).    Hence,  we   scrutinize  the  denial  of  petitioner's          application for habeas corpus without special deference either to          the district  court or to  the state courts on  the central issue          raised by this appeal.   Withal, we remain "bound by  the [state]          court's interpretation of  [its] evidentiary law" so long  as the          record  shows  "a  sufficient  factual  predicate  rationally  to          support" that court's categorization of the contested evidentiary          proffer.  Puleio  v. Vose, 830  F.2d 1197,  1204, 1207 (1st  Cir.                    ______     ____          1987)  (citations and  internal  quotation marks  omitted), cert.                                                                      _____          denied, 485 U.S. 990 (1988).          ______                                         III.                                         III.                                         ____                                       Analysis                                       Analysis                                       ________                                          A                                          A                                          _                    The  Confrontation Clause ensures  a criminal defendant          the  right "to  be confronted  with the  witnesses against  him."          U.S.  Const. amend.  VI.   This guarantee  applies to  the States          through the Fourteenth Amendment.  See Pointer v. Texas, 380 U.S.                                             ___ _______    _____          400, 403 (1965).  While the guarantee restricts the circumstances          under  which  a court  may  admit the  statements  of unavailable          declarants into evidence, the restriction is not  an absolute bar          since  the  keen  "societal  interest  in  accurate  factfinding"          necessarily  tempers  the  sweep  of  the  Confrontation  Clause.          Bourjaily  v. United  States, 483  U.S. 171,  182 (1987).   Thus,          _________     ______________                                          4          hearsay  evidence  from  an  unavailable  declarant  may  survive          exclusion  if the  proponent can  demonstrate that  the proffered          evidence  "bears  adequate  indicia  of reliability."    Ohio  v.                                                                   ____          Roberts,  448  U.S.  56,  66  (1980)  (internal  quotation  marks          _______          omitted).  Such indicia can be established either by showing that          the evidence  "falls within a firmly rooted hearsay exception" or          by showing that the evidence possesses "particularized guarantees          of trustworthiness."   Id.; accord  Idaho v. Wright,  110 S.  Ct.                                 ___  ______  _____    ______          3139, 3147 (1990) (collecting cases).                    Former  testimony  in  the  same case  generally  comes          within  a  recognized  hearsay  exception  if  the  declarant  is          unavailable  and  the  party  resisting  the  proffer  has had  a          "complete and adequate opportunity to cross-examine."  California                                                                 __________          v.  Green, 399 U.S. 149, 165-66 (1970) (quoting Pointer, 380 U.S.              _____                                       _______          at  407); see also Mancusi  v. Stubbs, 408  U.S. 204, 216 (1972);                    ___ ____ _______     ______          United  States  v. Zannino,  895 F.2d  1,  5-6 (1st  Cir.), cert.          ______________     _______                                  _____          denied, 494 U.S. 1082 (1990); cf. Fed. R. Evid. 804(b)(1).  Here,          ______                        ___          the  parties agree that the  tape recording was  generated in the          same  case and comprised the  prior testimony of  a declarant who          was  genuinely unavailable at the time of trial.2  They disagree,          however,  about  the  adequacy  of  the  opportunity  for  cross-                                        ____________________               2The  Court recently  cast doubt  upon the  admissibility of          prior  testimony in criminal  cases absent a  concrete showing of          the declarant's unavailability.   See White  v. Illinois, 112  S.                                            ___ _____     ________          Ct. 736, 743  (1992) (suggesting,  in dictum, that  a showing  of          declarant's  unavailability  might  be necessary  to  trigger the          prior  testimony  exception to  the hearsay  rule because  of the          constitutional  "preference  for  live testimony").    Given  the          witness's acknowledged  unavailability in this case,  we need not          ponder the import of the White dictum.                                   _____                                          5          examination.                    The petitioner claims  that, because  Martel/Ciccarelli          testified under  an adopted name  at the probable  cause hearing,          the opportunity for cross-examination  was inadequate as a matter          of law.   This claim derives from the Supreme  Court's opinion in          Smith v. Illinois, 390 U.S. 129 (1968).  There, an informant in a          _____    ________          drug-trafficking case  testified at trial under  an assumed name.          When defense  counsel attempted  to ascertain the  witness's true          name  and address,  the  trial judge  sustained the  prosecutor's          objections.   The Supreme  Court vacated the  ensuing conviction.          In  the  Court's view,  the  trial  judge's ruling  impermissibly          interfered with the defendant's right to confrontation because it          foreclosed "the opportunity  to place the  witness in his  proper          setting and put .  . . his  credibility to a test."   Id. at  132                                                                ___          (citation and quotation marks omitted).                    Petitioner interprets Smith  as spawning a  bright-line                                          _____          rule    a  rule  which mandates  that,  whatever nuances  may  be          supplied by the surrounding circumstances, testimony  given under          an  apocryphal name  can never  be admitted  over objection  in a          criminal trial.  But, this interpretation effectively ignores the          Court's   instruction  that   society's   interest  in   accurate          factfinding  is  to   be  regarded  as  an  important  factor  in          Confrontation Clause inquiries.  See Bourjaily, 483  U.S. at 182.                                           ___ _________          Accordingly,  we decline  to  read Smith  in  the wooden  fashion                                             _____          petitioner suggests.                    Even  before Bourjaily  we  held that  Smith's  guiding                                 _________                 _____                                          6          principle, insofar  as it  concerns a witness's  current address,          "is not, like a  rule of plane geometry,  absolute."  McGrath  v.                                                                _______          Vinzant,  528 F.2d 681, 684 (1st Cir.), cert. dismissed, 426 U.S.          _______                                 _____ _________          902 (1976).  In  our estimation, the Smith principle,  insofar as                                               _____          it concerns  a  witness's true  name, is  likewise not  absolute.          Accord United States  v. Rangel,  534 F.2d 147,  148 (9th  Cir.),          ______ _____________     ______          cert.  denied, 429 U.S. 854  (1976) (Smith "does  not establish a          _____  ______                        _____          rigid  rule  of disclosure  [of  a  witness's  name], but  rather          discusses disclosure against a background of factors") (citations          and internal quotation marks omitted).                    The long and short of it is that the Smith standard has                                                         _____          a core purpose:   to prevent a  criminal conviction based on  the          testimony  of  a  witness who  remains  "a  mere  shadow" in  the          defendant's  mind.  McGrath,  528 F.2d  at 685.   When  that core                              _______          purpose  is not  implicated,  we see  no  reason for  reflexively          excluding  otherwise  admissible  testimony.    Certainly,  Smith                                                                      _____          itself  gives no  indication that  its guiding  principle extends          beyond the confines  of its articulated rationale  into such far-          flung galaxies.  See Smith, 390  U.S. at 132 (explaining that the                           ___ _____          defendant must be accorded a fair opportunity to place an adverse          witness  in the witness's proper setting and to put his testimony          and credibility to a meaningful test).                    Against this backdrop, it  is readily apparent that all          pseudonyms are not equal in the eyes of the Confrontation Clause.          Rather, courts must gauge the pull of Smith in any  given case by                                                _____          the  degree to  which its  rationale applies.   Sometimes,  as in                                          7          Smith itself, a witness's use of a fictitious name will transform          _____          him  into  a wraith  and thereby  thwart  the efficacy  of cross-          examination.  Other times, the  use of a fictitious name will  be          no  more  than a  mere  curiosity,  possessing no  constitutional          significance.3                                          B                                          B                                          _                    The case at hand is at a substantial remove from Smith.                                                                     _____          In  Smith, unlike here, the  witness adopted a  pseudonym for the              _____          sole purpose of testifying.  In Smith, unlike here, the defendant                                          _____          did not know the witness's true identity before the jury returned          its  verdict.  In Smith, unlike here, the witness's anonymity was                            _____          the  direct result  of  government contrivance.    We find  these          distinctions  more than  sufficient to  propel this  case  out of          Smith's precedential orbit.          _____                    1.      In this  situation,  the name  under which  the                    1.             witness  testified  (Christopher  Martel) was  not  some  passing          cognominal fancy assumed  solely for the purpose of  the judicial          proceeding and bearing no relation  to the witness's life outside          the courthouse.  To the contrary, this was a name the witness had          clasped to his  bosom and made his own.   He held himself  out to                                        ____________________               3Petitioner's  insistence upon a bright-line rule, slavishly          followed,  could  produce a  bizarre  anomaly.   One  can  easily          envision circumstances  in which  a witness testifying  under his          birth name might present a  much more spectral figure than  if he          or  she  testified  under an  adopted  name.    For example,  the          appellations Issur  Danielovitch Demsky,  Betty Joan Perske,  and          Marion Michael Morrison  will probably be  of less assistance  in          placing the  affected individuals  in their proper  settings than          their  screen names (Kirk Douglas, Lauren Bacall, and John Wayne,          respectively).                                          8          the  world   as  Christopher  Martel;  he   was  identifiable  in          Siegfriedt's community by  that name;  and he was  known by  that          name  at his  own  address     an  address  which  he  accurately          recounted   in   the   course    of   his   testimony.      Thus,          Martel/Ciccarelli was  not some  incorporeal apparition    as was          his ostensible counterpart in Smith   but a flesh-and-blood human                                        _____          being easily placed within his relevant context.                    2.   At the probable cause hearing, petitioner was able                    2.          effectively  to question  the  declarant qua  Martel.   Moreover,          because petitioner  discovered the  witness's true name  prior to          trial, he  was able  effectively to  investigate and  impeach the          declarant qua Ciccarelli.   He took full advantage of  both these          opportunities, in  the  first  instance  through  lengthy  cross-          examination  and in the  latter instance by  calling witnesses to          debunk the declarant's reputation for truthfulness.  The goals of          Smith's guiding principle    placing  the witness  in his  proper          _____          setting  and  putting  his credibility  to  a  fair  test    were          satisfied.  See  generally United States v.  McLaughlin, 957 F.2d                      ___  _________ _____________     __________          12,  17 (1st  Cir. 1992)  (explaining that  the main  purposes of          cross-examination  are to  impeach  credibility and  to expose  a          witness's biases and possible motives for testifying) (collecting          cases); see also Clark  v. Ricketts, 958 F.2d 851, 855  (9th Cir.                  ___ ____ _____     ________          1991)  (discerning  no  Confrontation  Clause  violation  despite          informant's  refusal  to   reveal  his  name  while   testifying;          defendant knew  the witness's  name before trial  and, therefore,          had an opportunity to  conduct both an out-of-court investigation                                          9          and  an in-court  examination),  cert.  denied,  101 S.  Ct.  796                                           _____  ______          (1992).                    3.  In Smith, the defense failed to learn the witness's                    3.     _____          true name and  address because government actors   the prosecutor          and the  judge    combined to  block its  access to  the witness,          thereby  restricting  the  scope  of  cross-examination.    Here,          however,  there  is  no   suggestion  that  the  State   knew  of          Martel/Ciccarelli's   hidden  identity   at  the   time  of   the          preliminary  hearing  or  that   the  presiding  judge  sustained          objections   or   otherwise  imposed   any   Smith-related  scope                                                       _____          restriction on  cross-examination.   That  the  cross-examination          conducted   by    petitioner's   attorney   failed    to   reveal          Martel/Ciccarelli's birth name was not in any way attributable to          official conduct.                    We believe that this distinction is significant because          "the Confrontation Clause guarantees an opportunity for effective                                                  ___________          cross-examination, not  cross-examination  that is  effective  in          whatever way,  and to whatever  extent, the defense  might wish."          Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).  This          ________    _________          precept applies even when the witness himself is unequivocally to          blame for  the relative ineffectiveness of the cross-examination.          See  id. at 19 (discussing  a situation where  a witness's memory          ___  ___          lapse  prevented  him  from  answering  potentially  discrediting          questions).   We do not think this precept diminishes in vitality          simply because  the  defense's opportunity  to cross-examine  the          declarant arises at  a preliminary hearing.  See,  e.g., Roberts,                                                       ___   ____  _______                                          10          448 U.S.  at 73 n.12 (indicating that,  under such circumstances,          "no inquiry  into  'effectiveness' is  [ordinarily]  required").4          Because  petitioner  questions the  effectiveness  of  the cross-          examination rather than an undue, State-imposed limitation on its          scope,  he is  hard  pressed to  contend  that Smith  requires  a                                                         _____          reversal here.                    4.  When  this case is  judged by the  totality-of-the-                    4.          circumstances test that proper application of the Smith principle                                                            _____          requires,  it readily  passes constitutional  muster.5   We hold,          therefore,  that  Martel/Ciccarelli's  use  of an  alias  at  the          probable  cause  hearing  did  not,  without  more,  render  that          testimony inadmissible at a later proceeding in the same case.                                          C                                          C                    Once   the   Smith   hurdle  is   cleared,   this  case                                 _____          unquestionably   meets  the   Roberts  criteria.     Apart   from                                        _______          Martel/Ciccarelli's unique  brand of  name-dropping, there  is no          basis  for  any suggestion  that  the  defense's opportunity  for          cross-examination was  incomplete  or inadequate.    The  witness          testified under  oath, before a judge,  and in the same  case.  A                                        ____________________               4The Roberts Court indicated that an exception might lie for                    _______          extraordinary cases in which defense counsel provided ineffective          assistance at the  earlier hearing.  See Roberts, 448  U.S. at 73                                               ___ _______          n.12,  In  the case at hand,  however, appellant has advanced  no          such claim.               5Although  we  deem  the  three main  points  of  divergence          between this case and  Smith, see text supra, to be important, we                                 _____  ___      _____          emphasize that Smith must be  applied in a case-specific fashion,                         _____          having  in mind the entire array of circumstances that attend the          testimonial  proffer  in  any  given  situation.    We   do  not,          therefore,   assign   decretory   significance   to   any  single          distinguishing factor.                                          11          verbatim record  of the  proceedings was  contemporaneously made.          The  defendant was  represented  by counsel.    His attorney  was          permitted  to  cross-examine without  undue  restriction.   Under          these circumstances,  we find that the  state court appropriately          classified the  tape recording  within the hearsay  exception for          prior testimony of an unavailable declarant.  See Green, 399 U.S.                                                        ___ _____          at 165-66.                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                    We need go no further.  With Juliet we ask "What's in a          name?" and with  her we conclude "[t]hat which we  call a rose by          any other name would  smell as sweet."  W. Shakespeare, Romeo and                                                                  _________          Juliet, Act II, Sc. ii.  Though the State's witness had one legal          ______          name, he was not made a  phantom to the defense merely because he          testified  at the preliminary hearing under a name he had assumed          some  time previously.  The complete and adequate opportunity for          cross-examination  which  prevailed  at  the  first hearing,  the          defense's subsequent  opportunity, once armed  with knowledge  of          the witness's  birth name, to put his  credibility to the test at          trial, and the utter  absence of State action limiting  the scope          of the defense's cross-questioning,  combine to bring the earlier          testimony  well within a  firmly rooted hearsay  exception.6  The                                        ____________________               6We  note in  passing  that, even  apart  from whether  this          evidence  fell  within a  firmly  rooted  hearsay exception,  the          Confrontation  Clause would be satisfied so  long as the totality          of  the   circumstances  evinced  the   requisite  guarantees  of          trustworthiness.   See  Wright, 110  S. Ct.  at  3148 (describing                             ___  ______                                          12          Confrontation  Clause was  satisfied in  petitioner's case.   See                                                                        ___          generally Maryland          _________ ________          v.  Craig, 110 S. Ct. 3157,  3163 (1990) (discussing the need for              _____          "rigorous testing [of a  witness] in the context of  an adversary          proceeding"  in order  to satisfy  the  imperatives of  the Sixth          Amendment).           Affirmed.          Affirmed.          ________                                        ____________________          test; collecting cases).   Although we do not  decide the case on          this  ground, we  remark  the obvious:    a strong  argument  for          admissibility  can  be made  on  this  basis, particularly  since          Martel/Ciccarelli appeared  at the probable cause hearing without          the protection of  immunity and  spoke about  matters within  his          personal  knowledge.    These  latter two  points  are  important          considerations in  a trustworthiness  inquiry.  See  Zannino, 895                                                          ___  _______          F.2d at 7.                                          13
