                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                      March 11, 2005

                                                              Charles R. Fulbruge III
                                                                      Clerk
                             No. 04-60368



                    UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,


                                VERSUS


                  MARCUS ROBERSON, a/k/a “LOCO”,

                                                    Defendant-Appellant.




           Appeal from the United States District Court
             For the Northern District of Mississippi
                            (02-CR-76)



Before DAVIS, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

      Appellant Marcus Roberson, a/k/a “Loco,” was convicted of

felony possession   of   a   firearm   that   had   been   transported     in

interstate commerce in contravention of 18 U.S.C. § 922(g)(1).

Roberson appeals his conviction on several grounds, including his

assertion that the district court reversibly erred by permitting

the Government to use Roberson’s nickname at trial.                For the


  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
reasons set forth below, we AFFIRM Roberson’s conviction.

                    BACKGROUND & PROCEDURAL HISTORY

     On June 12, 2002, Marcus Roberson was indicted under 18 U.S.C.

§ 922(g)(1) on one count of being a felon, i.e., a person who had

previously been convicted of a crime punishable by a term of

imprisonment exceeding one year, in possession of a firearm that

had been transported in interstate commerce.       On July 25, 2002, a

Superceding Indictment issued, this time charging Marcus Roberson

a/k/a “Loco” with two counts of being a felon in possession of a

firearm   that    had   previously   been   transported    in   interstate

commerce.   Count One specifically referred to possession of a

Jennings .380 caliber semi-automatic pistol on July 1, 1999, while

Count Two related to Roberson’s alleged possession of a 9mm pistol

on or about December 24, 1999.

     Roberson entered a plea of not guilty, and the case was set

for trial in Greenville, Mississippi on March 31, 2003.               The

commencement of trial was held over four times on account of

Roberson’s filing of four motions for continuance.         The trial was

ultimately rescheduled to begin on December 1, 2003, in Oxford,

Mississippi.     Roberson did not object to the new venue ordered by

the district court.        Before and during trial, Roberson filed

several motions seeking various forms of relief.          On November 26,

2003, Roberson filed a motion seeking to admit into evidence

residual hearsay in the form of a statement from an alleged witness



                                     2
to the underlying incident, who allegedly could not be found to be

served with a subpoena.        The district court denied the motion,

finding that the witness’s submitted affidavit did not contain the

circumstantial guarantees of trustworthiness sufficient to satisfy

the relevant hearsay exceptions.        Then, on the first day of trial,

Roberson filed a motion in limine in which he requested the

district court to exclude any mention or reference to the nickname

“Loco” in identifying or referring to Roberson. The district court

again denied the motion.2

         On December 5, 2003, having considered the evidence presented

before it, the jury returned a verdict finding Roberson guilty of

Count Two of the Superseding Indictment.            On April 16, 2004,

Roberson was sentenced to 120 months’ imprisonment followed by a

term of three years’ supervised release and a special assessment of

$100.      Roberson timely filed the instant appeal.

                                DISCUSSION

I.       Whether the district court abused its discretion by permitting
         use of Roberson’s nickname “Loco” at trial.

         On appeal, Roberson argues that the use of his nickname,

“Loco,” at trial was highly prejudicial and not probative of any

material or relevant fact.      In response, the Government maintains

that reference to Roberson’s nickname was necessary to connect him


     2
    Roberson successfully filed two other motions in limine, which
excluded any mention of the details of his prior felonies and
excluded any reference to instances of firearms possession on any
occasion other than December 24, 1999.

                                    3
with the offense charged because the witnesses to the underlying

crime knew Roberson by his nickname, Roberson referred to himself

as “Loco,” and because the nickname itself was not suggestive of a

criminal disposition.

     We review the district court’s determination that use of a

defendant’s alias at trial is more probative than prejudicial for

an abuse of discretion.     United States v. Stowell, 947 F.2d 1251,

1255 (5th Cir. 1991).

     In United States v. Dean, 59 F.3d 1479 (5th Cir. 1995), this

Court explored the propriety of using a defendant’s nickname at

trial.   In Dean, several witnesses testified at trial using the

defendant’s nickname, “Crazy K,” to identify him.         Id. at 1491-92.

In addition, the prosecution attorneys and the attorney for a co-

defendant referred to the defendant’s nickname during the course of

the trial.   Id.   This Court determined that such use is appropriate

if it can be established that the witnesses knew the defendant by

that name. Id. at 1492.     The witnesses in Dean knew the defendant

by his nickname, and the attorneys’ use of the defendant’s nickname

was done primarily to distinguish between the two co-defendants who

shared the same first name.     Id.     The Court also found persuasive

the Government’s argument that “the nickname ‘Crazy K’ is not

necessarily suggestive of a criminal disposition.”          Id. at 1492.

     Here,   several    witnesses   called    by   the   Government   made

references identifying Roberson as “Loco.” For instance, the owner

of a car wash located next door to the hotel where the underlying

                                    4
incident occurred, testified that Shada Young, an eyewitness to the

crime, ran up to the car wash and proclaimed that “Loco just shot

Frank.”    In addition, the first police officer to arrive at the

scene testified at trial that Young immediately told him that “Loco

shot him, man.” There were two additional Government witnesses who

testified that they referred to Roberson as “Loco.” The Government

attorney   also   referenced   Roberson’s   nickname   during   closing

arguments.3   In addition, the Government introduced handwritten

letters by Roberson to establish that the handwriting found on

evidence at the crime scene was that of Roberson’s.      The letters,

written by Roberson to his girlfriend, were both signed “Loco.”

      Because the Government witnesses who testified at trial knew

Roberson as “Loco,” because Roberson referred to himself by his

nickname, and because we conclude the nickname “Loco” is not

suggestive of a criminal disposition, we hold the district court

did not abuse its discretion when it denied Roberson’s motion

seeking to exclude any reference to his nickname at trial.

II.   Whether the district court reversibly erred by not admitting
      into evidence residual hearsay offered by Roberson.

      Roberson filed a pre-trial motion with the district court


  3
    The Government attorney stated during closing arguments that
Roberson may have lived up to his nickname when he possessed the
firearm that was eventually used to shoot the victim. However,
Roberson did not object to the Government’s closing argument nor
did he seek a limiting instruction on the matter. Nevertheless,
the statement cannot be read as suggesting that Roberson was a
criminal or guilty of the offense charged simply because he went by
or “lived up to” the nickname “Loco.”

                                   5
seeking to admit into evidence residual hearsay in the form of an

affidavit from an individual who was an alleged witness to the

underlying crime.      The district court denied the motion, finding

that the affidavit did not contain the circumstantial guarantees of

trustworthiness      necessary   to   be   admitted   under   the   catch-all

hearsay exception found in Federal Rule of Evidence 807.4

        We apply a highly deferential standard of review in evaluating

a   district    court’s   determination     regarding   the    admission   of

statements under the residual hearsay exception.              Rock v. Huffco

Gas & Oil Co., Inc., 922 F.2d 272, 281 (5th Cir. 1991).              “We will

not reverse the district court’s finding ‘absent a definite and

firm conviction that the court made a clear error of judgment in

the conclusion it reached based upon a weighing of the relevant

factors.’”     Id. (citing Page v. Barko Hydraulics, 673 F.2d 134, 140

(5th Cir. 1982)).

        The hearsay in question is the affidavit of an unavailable


    4
        Federal Rule of Evidence 807 provides, in pertinent part,:

    A statement not specifically covered by Rule 803 or 804 but
    having     equivalent     circumstantial     guarantees     of
    trustworthiness, is not excluded by the hearsay rule, if the
    court determines that (A) the statement is offered as evidence
    of a material fact; (B) the statement is more probative on the
    point for which it is offered than any other evidence which
    the proponent can procure through reasonable efforts; and (C)
    the general purposes of these rules and the interests of
    justice will best be served by admission of the statement into
    evidence.

FED. R. EVID. 807.


                                      6
witness, Daryl Metcalf, who gave statements to both a prosecution

investigator and one of Roberson’s former attorneys.                 In the

affidavit, Metcalf claims to have witnessed the underlying crime,

but states that another individual, not Roberson, was the person

who possessed the firearm used to commit the offense.

     Because Metcalf could not be found to be served a subpoena,

his affidavit could only have been admitted under Rule 807.            This

Court has previously announced that the exception found in Rule 807

is to be used rarely, in only truly exceptional cases.               United

States v. Phillips, 219 F.3d 404, 419 n.23 (5th Cir. 2000).

Roberson also bears a heavy burden to come forward with indicia of

trustworthiness and probative force.        Id.

     The district court concluded that Roberson did not carry this

heavy burden, noting numerous credibility issues with the proffered

affidavit.    For instance, the district court observed that the

affidavit    itself   was   three   years   old,   was   submitted   by   an

individual who had been convicted of five prior felonies, and

contained a notarization that was suspect in that the identity of

the notary was not known and the signature line for the notary

contained an illegible signature.        In addition, the district court

found it particularly relevant that Metcalf could not be located,

even through the diligent efforts on the part of investigators and

police officers, and thus could not be cross-examined.

     We conclude that, based on the foregoing reasons, the district

court properly determined that the residual hearsay offered by

                                     7
Roberson    did     not   contain   the   circumstantial   guarantees    of

trustworthiness necessary to be admitted under Rule 807.

III. Whether the district court reversibly erred by transferring
     the case to a division different from that where the offense
     allegedly occurred.

     Roberson maintains he was denied a jury consisting of a fair

and random cross-section of the applicable jury division when the

district court transferred the trial from Greenville, Mississippi,

located    in   the   Northern   District   of   Mississippi,   to   Oxford,

Mississippi, also located in the Northern District. The Government

responds that there is no right to have a case tried within any

particular jury division, and that Roberson nevertheless failed to

object to the transfer until the jury had already been impaneled

and the Government had rested its case-in-chief.

     Because a district court has broad discretion in deciding

whether to transfer venue, we review such decisions for an abuse of

discretion.       United States v. Harris, 25 F.3d 1275, 1277-78 (5th

Cir. 1994).     “Reversal of an intradistrict transfer is proper only

if a party demonstrates a ‘substantial ground for overturning the

district court’s decision.’”        United States v. Lipscomb, 299 F.3d

303, 339 (5th Cir. 2002) (citing United States v. Dickie, 775 F.2d

607, 609 (5th Cir. 1985)).

     Whether a transfer to another division is appropriate is

generally governed by Federal Rule of Criminal Procedure 18, which

provides:


                                      8
       Unless a statute or these rules permit otherwise, the
       government must prosecute an offense in a district where
       the offense was committed. The court must set the place
       of trial within the district with due regard for the
       convenience of the defendant and the witnesses, and the
       prompt administration of justice.

FED. R. CRIM. P. 18.   This Court has determined that factors such as

security may also be considered by a district court when deciding

whether to transfer a case.         For instance, in Lipscomb, the Court

recognized   that   the    amount   of       jail    space    for   defendants      and

witnesses is a factor that falls under the “prompt administration

of justice” prong of Rule 18.                299 F.3d at 343 (citing United

States v. McKinney, 53 F.3d 664, 673 (5th Cir. 1995)).

       This Court was previously presented with an almost identical

scenario in Harris, where the district court moved the trial from

Greenville to Oxford, citing concerns over security problems and

noting that the facilities in Oxford were better equipped to handle

such    situations.5       25   F.3d     at    1278.          The   district    court

specifically observed that Oxford was the headquarters of the

United States Marshals Service and explained that moving criminal

trials there was the normal procedure in cases that required more

than ordinary security.           Id.        The district court also cited

scheduling issues that made Oxford the more convenient venue to

expeditiously handle the cases before it.                    Id.    On appeal, this

Court   concluded   that    the   district          court’s    assessment      of   the


  5
   The security concerns in Harris involved issues relating to
possible gang-related violence.

                                         9
security risks and the state of the court’s docket was sufficient

to warrant a transfer.      Id.

       Likewise, in the instant case, the district court specifically

made    reference   to   security    considerations,    noting   that    the

facilities in Greenville were inadequate to accommodate witnesses,

two of whom were incarcerated at the time.6            The district court

also observed that the detention center in Oxford provided both

ample physical facilities to conduct the trial as well as access to

more federal marshals for general security purposes.          It was also

revealed that the witnesses to the charged offense resided closer

to Oxford than Greenville, Roberson’s attorney resided and worked

in Oxford, and Roberson himself, along with two other witnesses,

were in custody at the time.

       Based on the foregoing reasons and because Roberson has failed

to come forward with any substantive evidence demonstrating that he

or the witnesses were inconvenienced by the transfer, we conclude

that the district court did not abuse its discretion when it

transferred the trial from Greenville to Oxford.

                                  CONCLUSION

       Having carefully reviewed the entire record of this case and

having   fully   considered   the    parties’   respective   briefing,   we


  6
    Like the case in Harris, the underlying incident here involved
a gang-related dispute.     The offense occurred in Clarksdale,
Mississippi, located approximately 60 miles from Oxford and 70
miles from Greenville.

                                      10
conclude that the district court did not abuse its discretion in

permitting the use of Roberson’s nickname at trial nor did it err

in   not   admitting   into   evidence   Roberson’s   residual   hearsay

evidence.   Moreover, Roberson was not prejudiced when the district

court transferred the trial from Greenville, Mississippi to Oxford,

Mississippi.    Accordingly, Roberson’s conviction is AFFIRMED.




                                   11
