            United States Court of Appeals
                       For the First Circuit


No. 06-2595

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                          MICHAEL PRIDGEN,

                        Defendant, Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]


                               Before

                         Boudin, Chief Judge,
                    Selya, Senior Circuit Judge,
                     and Gelpí,* District Judge.


     Christopher R. Goddu, Assistant Federal Public Defender, with
whom Page Kelley, Assistant Federal Public Defender, and Federal
Defender Office were on brief, for appellant.
     James F. Lang, Assistant United States Attorney, with whom
Donald L. Cabell, Assistant United States Attorney, and Michael J.
Sullivan, United States Attorney, were on brief, for appellee.


                          February 29, 2008




     *
         Of the District of Puerto Rico, sitting by designation.
           GELPÍ, District Judge.          Michael Pridgen appeals his

conviction in the district court for being a felon in possession of

a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).

He argues that the trial judge committed reversible error upon

refusing   to   allow   him   to   introduce   extrinsic   evidence     of   a

government    witness’s   prior    inconsistent     statements.      For   the

reasons discussed below, we conclude that the trial court erred,

but that the error was harmless.

I.         Factual Overview

           We summarize here the relevant facts evidenced in the

trial record.

           On the morning of October 29, 2004, someone fired shots

outside of the Roxbury District Courthouse in Dudley Square,

Roxbury, Massachusetts.       On the day of the shooting, Maria Sousa,

a probation officer in the courthouse, was meeting with a client in

her office. Shortly before 11:00 a.m., she heard a gunshot outside

her window.     Sousa looked out her window and saw several people

including two men standing together.           They stood approximately

twenty to twenty-five feet away from her office window.             She had a

clear view of the men and observed one of the them holding a silver

revolver in his right hand.          The man holding the revolver was

approximately    five     feet     eight   inches    in   height,    weighed

approximately 140 to 150 pounds, had cornrow braids in his hair and

a medium complexion, and wore a black sweatshirt, jeans, and


                                     -2-
sneakers.    The other man was two or three inches taller and of

medium build and complexion.   He wore jeans, sneakers, and a light

gray sweatshirt.

            Sousa saw the man holding the revolver fire it in the

direction of the front of the courthouse.      She then saw him run

towards Warren Place.    She saw the other man run but could not see

in which direction.

            Martha Holley, a construction landscaper, was working

across the street from the courthouse at the corner of Warren Place

and Warren Street when the shooting occurred.   Holley heard two to

four loud bangs that sounded like gunshots come from the direction

of the courthouse.      She looked towards the courthouse and saw

people running in all directions.      She observed one man looking

back at the commotion while crossing the street near her.       The

young man was dressed in a dark sweatshirt, light blue jeans, and

sneakers.   He wore cornrow braids in his hair, had light skin, and

appeared to be “twenty-ish.”     Holley watched him run, with his

hands in his sweatshirt pouch, down Warren Place and then up a

driveway at 8 Warren Place.

            At around the same time, Scott Alden was working on the

roof of the Urban League Building near the same intersection where

Holley saw the man.   Alden also heard gunshots.   When he heard the

shots, he looked in the direction of the courthouse and saw an

African-American male wearing jeans and a dark-colored hooded


                                 -3-
sweatshirt run past.    The man held a silver firearm in his right

hand.   Alden lost sight of the man when he ran under the overhang

of the building on which he was working.

           Boston Police Department (“BPD”) Officers Michael Ross

and Juan Seoane were in the courthouse the day of the shooting.

Both officers exited the courthouse when they heard two shots.

Outside the building, the officers observed twenty to thirty people

running or laying on the ground.

           Holley and Alden pointed the officers in the direction of

Warren Place.   Holley directed the officers to the first house on

the street, 8 Warren Place, saying, “He just went behind the new

construction house, right there.”     Three other individuals, a tow

truck driver, a taxi driver, and a criminal defense attorney, also

directed the officers toward Warren Place.      When Officer Seoane

arrived at Warren Place, construction workers on a nearby roof

indicated to him that a man had run behind the new construction

site at 8 Warren Place.   Officer Seoane arrived at 8 Warren Place

approximately thirty seconds to one minute after he exited the

courthouse; Officer Ross arrived approximately twenty to thirty

seconds after he exited the courthouse.

           An approximately six-foot-high chain link fence with an

opening surrounded the front of the house at 8 Warren Place.

Officer Ross, who arrived first at the house, entered through the

opening.   He then noticed that the front door to the house was ajar


                                -4-
and a gate to the backyard was open.      He peered around an opening

in the fence and saw Pridgen walking toward him up the driveway

from the rear of the house.    Officer Ross observed that Pridgen had

cornrow braids in his hair and was wearing jeans and sneakers.         He

also observed that Pridgen was wearing a white tee-shirt, which

struck him as odd given that it was a cold October day.          Pridgen

raised one hand and backed up a few steps when he saw Officer Ross.

Officers Ross and Seoane then detained Pridgen.

          After    detaining   Pridgen,   the   officers   searched   the

immediate area.    The search revealed no evidence of another person

in the vicinity.    Officer Ross then went down the driveway to the

backyard where he noticed a set of footprints leading to and from

an approximately three-foot-high fence at the rear of the yard. He

compared the footprints to the soles of Pridgen’s sneakers; they

appeared to be consistent. Officer Ross then looked over the fence

and saw a rolled-up black sweatshirt about five to ten feet away

from the fence.    There was no debris on top of the sweatshirt.      BPD

Detective Greg Gallagher recovered the sweatshirt.         He discovered

wrapped inside of it a silver Smith & Wesson .357 caliber revolver.

The firearm contained four live rounds and two spent shells,

indicating that the firearm had been fired twice.              Detective

Gallagher found only partial prints, insufficient to make an

identification, on the firearm and one round of ammunition.




                                  -5-
            On   December   15,   2004,    a   federal   grand   jury   in   the

District of Massachusetts returned an indictment charging Pridgen

with being a felon in possession of a firearm and ammunition, in

violation of 18 U.S.C. § 922(g)(1).            Trial commenced on July 24,

2006.     The government called Sousa as its first witness.             During

her direct examination, Sousa provided details regarding the two

men she saw outside her window on October 29th.           She testified that

the shooter was approximately five feet eight inches in height,

weighed approximately 140 to 150 pounds, had cornrow braids in his

hair and a medium complexion, and wore a black sweatshirt, jeans,

and sneakers.     She also testified that the man next to the shooter

was two or three inches taller, had a medium build and complexion,

and wore jeans, sneakers, and a light gray sweatshirt.

            On cross examination, Pridgen’s counsel questioned Sousa

about allegedly conflicting descriptions she had previously given.

Counsel asked Sousa about two meetings with defense investigator

Alicia Hutton during which she allegedly stated that the shooter

was taller and wore a gray sweatshirt.            Sousa responded that she

did not recall making the statements.

            During re-direct, Sousa testified that she made notes of

the October 29th events two days after the events occurred.                  She

explained why she made the notes.          She stated that she “wanted to

write something so that [she] could look back when the case came to

court.”     Familiar with the courts, she knew that cases sometimes


                                     -6-
take years to get to court.       Sousa testified that she did not

review the notes before either meeting with Hutton but reviewed

them before trial.

          Defense    counsel   later    tried   to   impeach   Sousa   via

extrinsic evidence of prior inconsistent statements.1             Pridgen

called Hutton to testify that Sousa had previously told her that

the shooter was the taller man wearing a gray sweatshirt.              The

district court, however, excluded the evidence, stating “That’s not

how you get a prior inconsistent statement into evidence” and “it

doesn’t fit within the rules.”

          During her opening statement, defense counsel told the

jury and the court about inconsistencies they would hear in Sousa’s

statements.   The judge, however, excluded the evidence defense

counsel planned to introduce to demonstrate the inconsistencies.

Notwithstanding the exclusion, defense counsel, in her closing

argument, suggested to the jury that Sousa had made inconsistent

statements and perhaps had fabricated her trial testimony.




     1
      Pridgen sought to admit the hearsay evidence under Rule
613(b) of the Federal Rules of Evidence, which permits admission of
extrinsic evidence of a prior inconsistent statement to impeach a
witness’s credibility. Sousa’s prior inconsistent statements would
not have been admissible as substantive evidence. Compare United
States v. Winchenbach, 197 F.3d 548, 558 (1st Cir. 1999) (noting
Rule 613(b) evidence admissible to call into question declarant’s
credibility, not to demonstrate truth of either statement), with
Fed. R. Evid. 801(d)(1) (delineating circumstances in which
witness’s prior statement constitutes nonhearsay admissible for
substantive purposes).

                                  -7-
            At   trial,   Pridgen   presented   an   innocent   bystander

defense.     He argued that he was innocently walking down the

driveway of 8 Warren Place when Officers Ross and Seoane came upon

him.     He also argued that the shooter escaped police by using an

alternate exit from the backyard at 8 Warren Place.             The jury

rejected his defense and returned a guilty verdict on July 26,

2006.     The judge sentenced him to eighty-four months, below the

guidelines range.

            The instant appeal followed. Pridgen’s sole claim before

us is that the exclusion of extrinsic evidence regarding Sousa’s

alleged prior inconsistent statements violated his Sixth Amendment

confrontation rights and constitutes reversible error.

II.         Analysis

            Pridgen contends that Rule 613(b) of the Federal Rules of

Evidence permitted the admission, for impeachment purposes, of

extrinsic     evidence    of   Sousa’s    alleged    prior   inconsistent

statements. He further argues that the district court violated his

Sixth Amendment confrontation rights in excluding the impeachment

evidence and that the error was not harmless beyond a reasonable

doubt.    The government concedes that the impeachment evidence was

admissible but notes that, upon the district court’s exclusionary

ruling, Pridgen failed to identify which evidentiary rule called

for admission of the evidence.      Pridgen’s failure, the government

argues, precludes this court from finding that the district court


                                    -8-
abused its discretion in excluding the evidence.                    Alternatively,

the government contends that the challenged exclusion was harmless.

              We    agree   with    Pridgen    that    Hutton’s     testimony     was

admissible to impeach Sousa.            It is not clear from the record why

the district court excluded Hutton’s impeachment testimony.                      Rule

613(b) permits admission of extrinsic evidence of a witness’s prior

inconsistent statement in limited circumstances; extrinsic evidence

is    only   admissible      when   a   foundation     has   been   laid   for    its

admission.      This      required foundation includes giving the witness

an opportunity to explain or deny the out of court statement.                    Fed.

R. Evid. 613(b); see also United States v. Hudson, 970 F.2d 948,

955    (1st        Cir.   1992)     (discussing       Rule   613(b)     foundation

requirements).        A review of the record reveals that Pridgen laid a

proper foundation, which included giving Sousa the opportunity to

explain or deny her statements, for admission of the extrinsic

evidence.      We therefore conclude that the district court erred in

not allowing Sousa to be impeached.             We now must determine if the

error was harmless.

              The parties dispute whether the court should apply the

constitutional or non-constitutional formulation of the harmless

error test.        The government advocates for the non-constitutional,

or evidentiary, harmless error test.            Under the non-constitutional

harmless error test, a conviction must be upheld if it is highly

probable that the error did not affect the verdict.                  United States


                                         -9-
v. Roberson, 459 F.3d 39, 49 (1st Cir. 2006), cert. denied, 127 S.

Ct. 1261 (2007).    Conversely, Pridgen      urges the court to apply the

constitutional     formulation   of    the   harmless   error   test.   The

constitutional test requires the government to demonstrate that the

error was harmless beyond a reasonable doubt by showing that the

defendant would have been convicted in the absence of the error.

Hudson, 970 F.2d at 953.

           Today, we need not decide which harmless error test

applies.   Under either the constitutional or non-constitutional

standard, the exclusion of the impeachment evidence was harmless.2

Pridgen would have been convicted, in light of the compelling

evidence of guilt the government offered, even if the district

court had admitted Hutton’s impeachment testimony.

           The government presented an exceedingly strong case of

guilt based on eyewitness testimony and circumstantial evidence

regardless of Sousa’s testimony regarding who fired the shots.

Sousa was not the only eyewitness who offered testimony of the

event and a physical description of the man who ran toward Warren

Place following the shooting.            Holley and Alden also offered

detailed and largely consistent descriptions of the scene and the



     2
      We note that Pridgen failed to raise his constitutional
argument during trial and could be held to have lost this claim.
See United States v. Vigneau, 187 F.3d 82, 86 (1st Cir. 1999); see
also United States v. Lombard, 72 F.3d 170, 187 (1st Cir. 1995)
(noting harmless beyond a reasonable doubt standard applies to
properly preserved constitutional error).

                                      -10-
suspect.3   Holley testified that, immediately after the shooting,

she saw a man wearing cornrow braids in his hair and dressed in a

dark sweatshirt, blue jeans, and sneakers run down Warren Place and

up the driveway at 8 Warren Place.            Alden, who had a different

vantage point than Holley, testified that he observed an African-

American male dressed in a dark hooded sweatshirt and jeans. Alden

testified that the man had a silver revolver in his right hand.

Pridgen’s physical appearance just moments after the shooting

matched the witness’s description, absent the sweatshirt.               The

sweatshirt police recovered matched the description of the one worn

by the runner.     The firearm wrapped in the sweatshirt matched the

description of the firearm Alden observed in the runner’s hand.

Pridgen offered no plausible reason to doubt either Alden’s or

Holley’s testimony.      Cf. United States v. de Jesus-Rios, 990 F.2d

672, 679 n.10 (1st Cir. 1993) (noting jury had reason to doubt

credibility of only witness who provided admissible testimony

linking defendant to crime).

            The    government    also     offered   strong   circumstantial

evidence of Pridgen’s guilt.            The evidence presented at trial

demonstrated      that   five   people,    including   Holley   and   Alden,

indicated to police that a man had run from the courthouse toward

Warren Place immediately after the shooting.            Moments after the


     3
      Holley and Alden’s descriptions of the runner generally
comport with Sousa’s trial testimony regarding the shooter who ran
toward Warren Place.

                                    -11-
shooting, police discovered Pridgen in close proximity to the

silver firearm found at 8 Warren Place.          Despite the day’s cold

weather, Pridgen was wearing only a tee-shirt, jeans, and sneakers.

Police found no other individual in the immediate vicinity of where

they found the bundled black sweatshirt and the firearm.              Officer

Ross   observed   a   set   of   footprints,   which    appeared    to   match

Pridgen’s footwear, leading to and from the fence behind which

where they found the firearm.        Given the wealth of circumstantial

evidence and eyewitness testimony linking Pridgen to the crime, we

conclude that Pridgen would have been convicted in the absence of

the    district   court’s   erroneous    exclusion     of   the   impeachment

evidence.    The district court’s error, therefore, was harmess.

            Pridgen’s argument that the district court committed

reversible error relies heavily upon de Jesus-Rios.                This case,

however, is readily distinguishable from de Jesus-Rios.                  In de

Jesus-Rios, the court, calling it a “close call,” held that the

district court’s erroneous admission of a pretrial identification

constituted reversible error where the government presented little

remaining evidence to link the defendant to the crime, and where

the court had no way to determine the role the identification

played in the jury’s verdict.        De Jesus-Rios, 990 F.2d at 678-79.

The court also noted that the record revealed a basis for genuine

concern regarding the only remaining witness’s credibility on a key

question.     Id. at 679 n.10.          In this case, the government’s


                                    -12-
circumstantial evidence and eye witness testimony was extremely

more   compelling   than   the   admissible    evidence   the    government

presented in de Jesus-Rios.       Cf. id. at 679 (acknowledging only

admissible evidence linking defendant to crime consisted of one

witness’s identification testimony).          Additionally, unlike in de

Jesus-Rios, Pridgen offered no viable challenge to the remaining

witness’s, particularly Alden’s and Holley’s, credibility. Cf. id.

at 679 n.10 (highlighting remaining witness’s lack of credibility

on central issue).     These distinctions limit the applicability of

de Jesus-Rios to this case.

            Pridgen offers one final argument to demonstrate the

purported harmfulness of the district court's error.            He draws our

attention to his trial counsel's promise, made to the jury during

her opening statement, to present Hutton's testimony to challenge

Sousa's credibility. In light of this promise, Pridgen argues, the

erroneous exclusion was so prejudicial that it could not constitute

harmless error.     See Anderson v. Butler, 858 F.2d 16, 17 (1st Cir.

1988) ("[L]ittle is more damaging than to fail to produce important

evidence that had been promised in an opening."). The overwhelming

evidence of Pridgen's guilt, however, limited the importance of

Hutton’s testimony and rebuts Pridgen's argument. The result would

have been the same even if the court had admitted the impeachment

evidence.   Additionally, we note that Pridgen's counsel presented




                                   -13-
her closing argument as if the district court had admitted the

impeachment evidence.

          In sum, any error by the district court was harmless,

given the government’s strong evidence of Pridgen’s guilt.

III.      Conclusion

          For the reasons explained above, we affirm Pridgen’s

conviction.

          Affirmed.




                              -14-
