
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-2178                                    UNITED STATES,                                      Appellee,                                          v.                                    DWAYNE YOUNG,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Karl R.D.  Suchecki with  whom  Jennifer Petersen  and Petersen  &            ___________________             _________________      ___________        Suchecki were on brief for appellant.        ________            Andrea Nervi  Ward, Assistant  United States  Attorney, with  whom            __________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   January 23, 1997                                 ____________________                      STAHL,  Circuit  Judge.     In  May  1995,  a  jury                      STAHL,  Circuit  Judge.                              ______________            convicted  defendant  Dwayne  Young  on  a  single  count  of            unlawful  possession of  a firearm  by a  felon, 18  U.S.C.              922(g)(1).  During trial, and after denying Young's motion to            suppress,  the   district  court  admitted  the  firearm  and            ammunition into evidence.  The district court also admitted a            so-called "turret  tape," a recording of  radio transmissions            between a police officer and his dispatcher,  made during the            officer's  foot pursuit  of  Young.1   Finally, the  district            court  allowed   the  jury  to   use  a   government-prepared            transcript as  an aid in listening  to the tape while  it was            being played during trial.  Finding no error, we affirm.                                      Background                                      Background                                      __________                      On  April 7,  1994, Officers  James Fee  and Robert            Twitchell of the  Boston Police Department, while  patrolling            the  Roxbury section  of Boston,  received a  radio broadcast            describing  three  individuals  suspected  of  armed robbery.            Several  blocks  from  the  last  reported  location  of  the            suspects, the officers noticed a group  of three men standing            together.    Upon  seeing  the unmarked  cruiser,  the  group            dispersed.   One of the three, Young, walked in one direction                                            ____________________            1.  The  term "turret  tape"  refers to  recordings of  radio            broadcasts  between Boston  Police officers  and dispatchers.            Specifically,  "turret"  derives  from   the  fact  that  the            communications  facility  which  records  such  transmissions            resides in aturret tower at the Boston Police headquarters.                                           -2-                                          2            by himself while the  other two departed together  in another            direction.                        The officers, noting that Young's short height  and            black clothing appeared  to match the  description of one  of            the  robbery  suspects,  pulled  their cruiser  to  the  curb            alongside Young.  From  the passenger seat, Officer Twitchell            rolled down his  window and announced "Boston Police, you got            a minute?"  to  which Young  responded  "Sure."   Young  then            "angled" toward the rear of the cruiser.  As Young approached            the  car,  the  officers  noticed  the handle  of  a  handgun            protruding from  his waistband.  Officer  Twitchell lunged at            Young  through  the  window  of the  cruiser,  made  fleeting            contact  with his jacket or  belt, but failed  to either grab            the  gun or  detain  him.   Young  turned  and  ran from  the            cruiser, with Twitchell, now on foot, in pursuit.                      During  the  pursuit, Officer  Twitchell  saw Young            remove  the  gun from  his waistband  and  throw it  into the            basement  stairwell of  a building  on Elm Street.   Although            Young   successfully  eluded  Twitchell,  he  was  ultimately            apprehended  by a back-up police officer who found him hiding            in a nearby garage.   Officer Twitchell then returned  to the            stairwell  and recovered  the gun.   While these  events were            unfolding, Officer Twitchell and other  officers continuously            transmitted  information  to  the  dispatcher  at  the Boston                                         -3-                                          3            Police headquarters.  These transmissions comprise the turret            tape.                        Prior to trial, Young moved to suppress the gun and            the turret tape.   Young asserted  that the police  recovered            the gun through  a violation of his  Fourth Amendment rights,            and argued  that the  tape constituted  inadmissible hearsay.            The district court denied Young's motion to suppress the gun,            but  granted his motion with respect to the turret tape, with            the caveat  that  defense counsel's  cross examination  might            subsequently render  it admissible.   During trial  and after            defense counsel's cross examination of Officer Twitchell, the            district court admitted the turret tape as a prior consistent            statement, and allowed the jury to use a transcript  prepared            by the government, as an aid in listening to the turret tape.            Young appeals  admission of the gun and  tape, as well as use            of the transcript.                                      Discussion                                      Discussion                                      __________                      A.  Suppression of the Gun                      __________________________                      We employ  a dual standard in  reviewing motions to            suppress.   We review  the district court's  findings of fact            for clear error.  See United States v. Bartelho, 71 F.3d 436,                              ___ _____________    ________            441 (1st  Cir. 1995).  "A  clear error exists only  if, after            considering  all of the evidence, we are left with a definite            and  firm conviction that a  mistake has been  made."  United                                                                   ______            States v.  McCarthy,  77  F.3d 522,  529  (1st  Cir.),  cert.            ______     ________                                     _____                                         -4-                                          4            denied, 117 S.  Ct. 479  (1996).  Deference  to the  district            ______            court's  findings of  fact  reflects our  awareness that  the            trial judge, who hears the testimony, observes the witnesses'            demeanor and evaluates the facts first hand, sits in the best            position  to determine  what actually  happened.   See United                                                               ___ ______            States  v.  Zapata, 18  F.3d 971,  975 (1st  Cir. 1994).   By            ______      ______            contrast, we review  conclusions of law  de novo and  subject                                                     _______            the  trial  court's  constitutional  conclusions  to  plenary            review.  See id.; see  also Ornelas v. United States, 116  S.                     ___ ___  ___  ____ ________________________            Ct. 1657, 1663 (1996).  Determinations  of probable cause and            reasonable  suspicion, relevant  to the  constitutionality of            law  enforcement   seizures  and  arrests  under  the  Fourth            Amendment, present  mixed questions of law and  fact which we            review de novo.  See Ornelas, 116 S. Ct. at 1663.                     __ ____   ___ _______                      Young  argues  that  the  district court  erred  by            concluding that recovery of the firearm did not occur through            conduct   that   violated   his   Fourth   Amendment  rights.            Specifically,  Young contends that Officers Twitchell and Fee            lacked either the reasonable suspicion needed to stop him, or            the probable cause required for an arrest.  We disagree.                      Interaction between law  enforcement officials  and            citizens  generally  falls  within  three   tiers  of  Fourth            Amendment   analysis,  depending  on   the  level  of  police            intrusion  into a person's privacy.  The first or lowest tier            encompasses  interaction of  such minimally  intrusive nature                                         -5-                                          5            that  it  does  not trigger  the  protections  of the  Fourth            Amendment.  The Supreme  Court has repeatedly emphasized that            not all personal intercourse  between the police and citizens            rises  to the  level of a  stop or  seizure.   See Florida v.                                                           ___ _______            Bostick, 501 U.S. 429, 434 (1991) (citing cases).  Police may            _______            approach  citizens in  public spaces  and ask  them questions            without triggering  the protections of the  Fourth Amendment.            See  id.; United States v. Manchester, 711 F.2d 458, 460 (1st            ___  ___  _____________    __________            Cir. 1983).  Such police engagements need not find a basis in            any  articulable suspicion.  See  Bostick, 501  U.S. at  435.                                         ___  _______            Police conduct  falls short  of  triggering Fourth  Amendment            protections when, from the  totality of the circumstances, we            determine that  the subject  of any police  interaction would            have  felt free  to  terminate the  conversation and  proceed            along his  way.  See Bostick, 501  U.S. at 439; United States                             ___ _______                    _____________            v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994).  The totality of the               ______            circumstances in  this case establishes  that any interaction            between the  officers and Young prior  to Officer Twitchell's            lunge  falls well  within  the first  tier of  police-citizen            interaction, and therefore, fails  to trigger the protections            of the Fourth Amendment.  As they pulled alongside Young, the            officers identified themselves as Boston Police officers, and            asked  "got a  minute" to  which Young  replied "sure."   The            district  court  credited  the  officers'  testimony,  and we            detect  no clear error.   We recently determined that conduct                                         -6-                                          6            virtually identical to  what occurred  in this  case did  not            trigger   the  protections  of   the  Fourth  Amendment,  and            concluded that  in the  absence of  an officer's  exertion of            physical  force or  an individual's submission  to a  show of            authority,  no seizure  occurs.   See Sealey,  30 F.3d  at 10                                              ___ ______            (finding no Fourth Amendment seizure where police officers in            a cruiser approached defendant and yelled "Hey Steven, what's            up?") (citing California v. Hodari D., 499  U.S. 621 (1991)).                          __________    _________            We reiterate  that conclusion  with respect to  the officers'            conduct toward Young prior to Officer Twitchell's lunge.                      The   remaining  two  tiers   of  Fourth  Amendment            analysis comprise  de facto arrests requiring probable cause,                               __ _____            and lesser seizures generally known as investigative or Terry                                                                    _____            stops,  which  require a  lesser  reasonable  suspicion.   An            arrest occurs when an officer, acting on probable  cause that            an individual has committed  a crime, detains that individual            as  a suspect.   Probable cause exists  when police officers,            relying  on reasonably  trustworthy facts  and circumstances,            have information upon which a reasonably prudent person would            believe  the suspect had committed or was committing a crime.            See United States  v. Maguire,  918 F.2d 254,  258 (1st  Cir.            ___ _____________     _______            1990), cert. denied, Kavanagh v. United States, 501 U.S. 1234                   _____ ______  ________    _____________            (1991).  An investigative  stop, also known as a  Terry stop,                                                              _____            see Terry  v. Ohio, 392 U.S.  1 (1968), occurs  when a police            ___ _____     ____            officer,  acting on  reasonable and articulable  suspicion of                                         -7-                                          7            criminal activity, briefly  detains an individual to  confirm            or  dispel  his suspicion.   See  McCarthy,  77 F.3d  at 529;                                         ___  ________            United States v. Schiavo, 29 F.3d 6, 8 (1st Cir. 1994).            _____________    _______                      The  government  concedes,  for  purposes  of  this            appeal, that when Officer  Twitchell made contact with Young,            he  seized him  for  Fourth Amendment  purposes.   See, e.g.,                                                               ___  ____            Zapata, 18 F.3d at 977 (indicating that officer's touching of            ______            citizen  during ongoing  investigative stop  establishes that            seizure  occurred).   In the  absence of further  argument on            this point, we  proceed under the  assumption that a  seizure            occurred  in this  case.   Young  contends that  the officers            either seized him without the requisite reasonable suspicion,            or  arrested him  without the requisite  probable cause.   We            conclude that  to the  extent the officers,  through fleeting            physical  contact, seized Young, they did  so well within the            parameters of  an investigative stop, and  that the officers'            actions  do  not rise  to the  level  of an  arrest requiring            probable cause.                      With respect to  investigative stops, the  relevant            question "is  not whether  the police had  probable cause  to            act, but  instead whether  the actions taken  were reasonable            under  the circumstances."    McCarthy,  77  F.3d at  529.  A                                          ________            familiar two-  pronged test  guides this  inquiry.   We first            must determine whether the  officer's action was justified at            its  inception,  and, if  so,  whether the  action  taken was                                         -8-                                          8            reasonably  related  in  scope  to  the  circumstances  which            justified the interference.  See id. at 530; United States v.                                         ___ ___         _____________            Kimball, 25 F.3d 1, 6 (1st  Cir. 1994).  To satisfy the first            _______            prong, "'the police officer must be able to point to specific            and  articulable facts  which, taken  together  with rational            inferences   from  those   facts,  reasonably   warrant  that            intrusion.'"   Kimball, 25 F.3d at 6 (quoting Terry, 392 U.S.                           _______                        _____            at 21).  To satisfy the second prong, we examine the totality            of the circumstances, see  United States v. Walker, 924  F.2d                                  ___  _____________    ______            1, 4 (1st Cir. 1991), bearing in mind that "an officer may []            conduct  a patdown search  where the officer  is justified in            believing  that the  person  is armed  and  dangerous to  the            officer or others," Schiavo, 29 F.3d at 8. According  to  the                                _______            district court,  the following facts gave  rise to reasonable            suspicion  necessary to  temporarily detain  Young:   (1) the            officers saw three  individuals, one or more of whom appeared            to  match the description of three armed robbers who had been            spotted in the area; (2) as they approached, one of the three            (Young)  walked  away from  the group;  (3) Officer  Fee told            Officer Twitchell  that he  thought he recognized  the person            walking away (Young) as a "bad guy;" (4) upon asking Young to            answer some questions,  Young angled toward  the rear of  the            car instead of directly toward  the passenger window; and (5)            as  Young  approached,  both  officers  saw  a  gun   in  his            waistband.    Careful review  of  the record  from  which the                                         -9-                                          9            district court drew these  findings does not leave us  with a            "definite  and firm conviction that a mistake has been made,"            McCarthy,  77 F.3d at 529, and those findings are not clearly            ________            erroneous.   We are satisfied, moreover, that  these facts in            their totality  could give  rise to the  officers' reasonable            suspicion that Young had been involved in criminal activity.                      We also conclude  that Officer Twitchell's  action,            the  lunge at Young, was  reasonably related in  scope to the            circumstances.  In agreeing  with the district court we  note            that  sight of the gun gave rise to a significant concern for            the officers' and public's safety.  See Walker, 924 F.2d at 4                                                ___ ______            (officer's   concern  for   own  safety   is   of  "paramount            importance" in  assessing the  appropriateness of  the action            taken).  To  open the door of the cruiser  and question Young            would  have afforded Young an opportunity to use the gun, and            could  have placed the officers  and any bystanders in harm's            way.                       To be sure, the  officers did not determine whether            Young  carried the  firearm  legally prior  to attempting  to            remove  it or restrain him.   As we  have indicated, however,            "'[c]onduct innocent in  the eyes of the  untrained may carry            entirely different 'messages'  to the experienced or  trained            observer.'"  United States  v. Stanley, 915 F.2d 54,  56 (1st                         _____________     _______            Cir.  1990) (quoting United States v.  Bernard, 623 F.2d 551,                                 _____________     _______            560 (9th Cir.  1979)).  "Weighing  'the limited violation  of                                         -10-                                          10            the individual's privacy  against the  opposing interests  in            crime prevention  and detection  and in the  police officer's            safety,'"  United  States v.  Quinn, 815 F.2d  153, 156  (1st                       ______________     _____            Cir.  1987), we  conclude that  Officer Twitchell's  lunge at            Young, and the attendant physical contact, were reasonable in            scope and the circumstances justified the intrusion.                      Young,  however, argues  that the  physical contact            resulting   from  Officer  Twitchell's   lunge  elevated  the            encounter  to  a de  facto  arrest,  which required  probable                             __  _____            cause.  We have  recently rejected the contention  that every            incidence  of physical  contact, even  de minimis,  between a                                                   __ _______            police officer and a citizen, constitutes an arrest requiring            probable case.  See  Zapata, 18 F.3d at 977  (indicating that                            ___  ______            police touching of individual  does not necessarily elevate a            seizure to  an arrest).   Parsing whether  any given  seizure            constitutes an arrest  or a lesser seizure, however, proves a            difficult  task.    See  id.  at  975   (explaining  that  no                                ___  ___            scientific    formula    exists   to    distinguish   between            investigative stops  and arrests).  Police  conduct will rise            to  the level of  an arrest  when "'a  reasonable man  in the            suspect's position  would have understood his  situation,' in            the circumstances  then obtaining, to be  tantamount to being            under arrest."   See  id. (quoting  Berkemer v.  McCarty, 468                             ___  ___           ________     _______            U.S. 420, 442 (1984)).                                           -11-                                          11                      Factors that can elevate  a non-arrest seizure to a            de facto arrest requiring probable cause include extending an            __ _____            investigative stop  beyond the  time necessary to  confirm or            dispel  reasonable suspicion,  and  physically  blocking  the            suspect's exit such  that a reasonable person  would not feel            free to leave.   See Maguire,  918 F.2d at 259.   The use  of                             ___ _______            guns and  the  presence  of more  than  one  police  officer,            however,  do  not necessarily  convert an  investigative stop            into an  arrest.  See id.  Above all  else, our cases in this                              ___ ___            area  evince the fact specific  nature of the  inquiry.  See,                                                                     ___            e.g.,  Kimball, 25  F.3d at  6  ("Whether police  activity is            ____   _______            reasonable  in any  particular context  depends on  the facts            which are unique to that incident.").                        By lunging at and  brushing his hand against Young,            Officer Twitchell did  not impose "'restraints comparable  to            those of a  formal arrest.'"  Quinn, 815 F.2d at 156 (quoting                                          _____            Berkemer,  468 U.S. at 441).   The officers  did not restrain            ________            Young's freedom  of movement or succeed in detaining him even            briefly.  Nor did  the officers ever communicate  verbally to            Young that he was under arrest or that  they wanted to arrest            him.   Under  those  circumstances, no  reasonable person  in            Young's position  could have understood his  situation "to be            tantamount to being under  arrest."  Zapata, 18 F.3d  at 975.                                                 ______            In light of police  conduct we have determined to  fall short            of de facto arrest, we affirm the district court's conclusion               __ _____                                         -12-                                          12            that  Officer  Twitchell's de  minimis physical  contact with                                       __  _______            Young did not effect an  arrest.  Cf. Zapata, 18 F.3d  at 977                                              ___ ______            (holding  that de  minimis physical  contact did  not convert                           __  _______            investigative stop  into arrest);  Quinn, 815 F.2d  at 156-57                                               _____            (holding that  presence of several officers  and the blocking            of defendant's  car did  not convert investigative  stop into            arrest);  United States  v. Trullo,  809 F.2d  108,  113 (1st                      _____________     ______            Cir.) (holding that police officer's use of drawn gun did not            convert  investigative stop into  arrest); cert.  denied, 482                                                       _____  ______            U.S. 916 (1987).                      B.  Admission of the Turret Tape                      ________________________________                      At trial,  the district  court admitted the  turret            tape, a recording of  the radio transmissions between Officer            Twitchell  and his  dispatcher during  his pursuit  of Young.            The district court initially declined to allow the  tape, but            warned defense counsel that questioning on  cross examination            of  Officer Twitchell might  render the tape  admissible as a            prior consistent  statement under  Rule  801(d)(1)(B) of  the            Federal  Rules  of  Evidence.   On  appeal  Young renews  his            hearsay objection to the tape.2                                              ____________________            2.  Young   also  asserts   that   the  tape   lacked  proper            foundation,  and cannot  be characterized  as either  Officer            Twitchell's  present sense impressions or excited utterances.            See   Fed.  R.  Evid.  803(1)  and  (2).    With  respect  to            ___            foundation, we note that  Young failed to object to  the tape            on foundation grounds at  trial.  We will  review, therefore,            only for  plain error, and  conclude that the  district court            admitted  the  tape  on  a  sufficient  foundation.    United                                                                   ______            States v.  Mitchell, 85 F.3d 800, 807 (1st Cir. 1996).  Prior            ______     ________                                         -13-                                          13                      We  review the district court's evidentiary rulings            for  abuse of discretion.   See United States  v. Alzanki, 54                                        ___ _____________     _______            F.3d 994, 1008 (1st Cir. 1995),  cert. denied, 116 S. Ct. 909                                             _____ ______            (1996).  Rule 801(d)(1)(B) provides in relevant part:                      (d)  Statements which are not hearsay.  A                      (d)  Statements which are not hearsay.                      statement is not hearsay if--                           (1)  Prior     statement     by                           (1)  Prior     statement     by                           witness.        The   declarant                           witness.                           testifies   at  the   trial  or                           hearing   and  is   subject  to                           cross-examination    concerning                           the    statement,    and    the                           statement   is   .   .  .   (B)                           consistent with the declarant's                           testimony  and  is  offered  to                           rebut  an  express  or  implied                           charge against the declarant of                           recent fabrication  or improper                           influence or motive . . .             Fed. R. Evid. 801(d)(1)(B).   For Rule 801(d)(1)(B) purposes,            we  view the  lower  court's determination  that a  statement            rebuts an express  or implied charge of recent fabrication as            a  finding of  fact, subject  to reversal  only if  it proves                                            ____________________            to  playing  the  tape,   the  government  elicited   Officer            Twitchell's  testimony  that  he  recognized the  tape  as  a            recording of the broadcast,  he had listened to the  tape, he            recognized all of  the voices on it, and that  to the best of            his knowledge,  the tape fairly and  accurately reflected the            radio  transmissions  that occurred  that  evening.   In  the            absence of any foundation-based objection by defense counsel,            we cannot  conclude that  the district judge  committed plain            error.   With  respect to  Young's alternative  arguments, we            conclude  that the  tape  was properly  admitted  as a  prior            consistent statement, and, therefore, we decline to  consider            them.                                           -14-                                          14            clearly  erroneous.  United States v. Piva, 870 F.2d 753, 758                                 _____________    ____            (1st Cir. 1989).                      During direct examination  of Officer Twitchell the            government sought to introduce the turret tape.  The district            judge  declined to allow the tape at that time, but indicated            that cross examination of  Officer Twitchell could render the            tape  admissible  as  a Rule  801(d)(1)(B)  prior  consistent            statement. During cross examination, Young's counsel elicited            testimony from Officer Twitchell  that, prior to his recovery            of  the firearm,  he  had never  broadcast  (a) that  he  and            Officer Fee saw  a gun in Young's waistband, and  (b) that he            had seen Young throw the handgun during the pursuit.                      The  government argued that through those questions            defense counsel  implied  that Officer  Twitchell  fabricated            seeing Young possess the  gun, and moved on redirect  to play            the  turret tape  as a  prior statement  consistent  with his            testimony.   Officer  Twitchell testified  that he  saw Young            throw  the gun, and on the tape, states the same observation.            The district court found  that defense counsel, regardless of            her  intent, had elicited testimony from which the jury could            infer that  Officer Twitchell fabricated his  testimony, and,            accordingly, admitted  the tape under Rule  801(d)(1)(B).  We            cannot conclude that the lower court abused its discretion.                      Despite defense  counsel's insistence that  she did            not intend to imply fabrication, the district judge correctly                                         -15-                                          15            ruled  on the basis of the possible inferences the jury could            make as a result of the question.   See Piva, 870 F.2d at 759                                                ___ ____            (evaluating charge of fabrication on basis of what jury could            infer).  Moreover,  the district judge  did not commit  clear            error in finding  that as  a result of  cross examination,  a            jury could have concluded  that Officer Twitchell neither saw            Young with a gun in his waistband, nor saw Young throw a gun.            Defense   counsel's   questioning   implied  fabrication   by            highlighting  that Officer Twitchell  never broadcast that he            saw a gun in  Young's waistband, and that he  never broadcast            that he saw Young throw the gun until after Officer Twitchell            recovered  the gun.    In simple  terms,  a jury  could  have            inferred that  if Officer Twitchell did not  broadcast it, it            did not happen.   His  statement on the  tape was  consistent            with his  testimony on direct  examination that  he had  seen            Young  throw  the  gun,  and,  therefore,  was  appropriately            admitted as a prior statement consistent with that testimony.                      Young points  out that  nothing in the  turret tape            directly  contradicts the  testimony  elicited  during  cross            examination, that Officer Twitchell did not broadcast that he            saw Young throw a gun until  after he recovered it.  While we            do  not dispute  the truth  of Young's  assertion, we  do not            ascribe  similar significance  to it.   Nothing  in the  rule            requires  the prior  consistent  statement to  contradict any            testimony; the  prior consistent  statement  must merely  "be                                         -16-                                          16            offered to rebut a charge or  implied charge of fabrication."                                      __________________            Fed. R.  Evid. 801(d)(1)(B) (emphasis added).   Having found,            without  clearly erring,  that defense  counsel's questioning            could  permit the  jury  to infer  fabrication, the  district            judge did  not abuse his  discretion in admitting  the turret            tape  as  a  Rule 801(d)(1)(B)  prior  consistent  statement,            offered to rebut that implied charge.                      The district judge  allowed the government to  play            the  entire turret  tape, "in  order to  set the  context, in            order  to understand the timing of what was going on."  Young            contends that  even if one of  Officer Twitchell's statements            constitutes a prior consistent  statement, the tape  contains            additional statements of Officer Twitchell and others that do            not  fall within  that category,  and, therefore,  constitute            inadmissible hearsay.                      At  sidebar  the  district  judge  invited  defense            counsel to  offer redactions  for his consideration  prior to            playing  the tape  to the  jury.   Defense counsel  failed to            offer specific, cognizable redactions,  failed on the  record            to  object specifically  to those  portions  of the  tape she            found objectionable, and to explain to the district judge why            they   did  not   constitute  prior   consistent  statements.            Accordingly, Young may not now raise this argument on appeal.            See Piva, 870  F.2d at  759 (lack of  specific objections  at            ___ ____                                         -17-                                          17            trial  precludes  party   from  raising  specific  issue   on            appeal).3   In any event, having reviewed the contents of the            tape, we cannot  conclude that the district  judge abused his            discretion in admitting the entire tape and playing it to the            jury.4                      C.  Use of Transcripts of the Turret Tape                      _________________________________________                      The district  judge also allowed the  government to            provide  a transcript  to aid  the jury  in listening  to the            tape.   By way  of background, we digress  to explain how the            government  prepared the  transcript.   The  government first            sent the  tape to  a transcribing company,  which transcribed            the  tape to the best of its ability, given its unfamiliarity            with police  jargon, names  and  codes, and  the events  that            transpired  that particular  evening.    The government  then            allowed each participant to review the transcript independent                                            ____________________            3.  In Piva,  the district  judge admitted a  prior statement                   ____            under  Rule  801(d)(1)(B)   over  counsel's  general  hearsay            objection.  870 F.2d at 759.  Rather than point to a specific            reason why  Rule 801(d)(1)(B)  did not apply,  counsel merely            made   a  hearsay   objection   and   also  argued   improper            rehabilitation.   See  id.   We held  that counsel's  lack of                              ___  ___            specificity precluded raising  a specific  challenge to  Rule            801(d)(1)(B) applicability for the first time on appeal.  See                                                                      ___            id.              ___            4.  With respect to the  Turret tape, Young did not  raise an            argument  based  on Tome  v. United  States,  116 S.  Ct. 696                                ____     ______________            (1996)  either  at  trial  or now  on  appeal.    We are  not            unmindful, however, of the Supreme  Court's recent admonition            that to be admissible, a prior consistent statement must have            been  made before the alleged motive to fabricate arose.  Id.                                                                      ___            at 700.  In  light of the nearly contemporaneous  recovery of            the gun  and Officer Twitchell's broadcast,  we are satisfied            that this case does not present us with a Tome issue.                                                      ____                                         -18-                                          18            of one another, in order to attempt to fill in those portions            the transcribing company could not determine.  The government            then  sent the  revised transcript  back to  the transcribing            company, which then reviewed it while listening to the  tape,            in order to validate the corrections.                      The government informed the court of this procedure            at  the  hearing on  Young's  motion  to  suppress,  when  it            introduced  the  tape  at  trial,  and  before  the  jury  by            specifically eliciting Officer  Twitchell's testimony that he            assisted in the  preparation of  the final  transcript.   The            district judge  offered defense  counsel  the opportunity  to            replay the  tape with an alternative  transcript, and allowed            significant time and latitude on cross examination of Officer            Twitchell about  the government's transcript and  his role in            its preparation.  Defense counsel, however, failed to utilize            any alternative transcript, or even the original draft of the            transcript,   to   point   out   potential   inaccuracies  or            inconsistencies, or  simply to offer the  jury an alternative            view of the contents of the tape.                      In  this circuit we  have long approved  the use of            properly authenticated transcripts of tape recordings for the            purpose of  helping the  jury  listen to  and understand  the            recordings themselves.   See  United States v.  Campbell, 874                                     ___  _____________     ________            F.2d  838, 849 (1st Cir. 1989); United States v. Rengifo, 789                                            _____________    _______            F.2d 975, 980 (1st  Cir. 1986) (citing cases).   The district                                         -19-                                          19            judge  may even allow the jury to have the transcripts during            deliberations provided "the court makes clear that the tapes,            not  the   transcript  constitute  evidence   in  the  case."            Rengifo, 789  F.2d at 980 (quoting United  States v. Richman,            _______                            ______________    _______            600  F.2d 286,  295 (1st  Cir. 1979)).   Prior to  trial, the            district judge  should attempt to obtain  a single stipulated            transcript;  failing that,  however, the  court should  allow            each party to introduce its  own transcript of the  recording            upon proper authentication.  See id. at 983.                                            ___ ___                      In addition,  when "a defendant  has possession  of            the transcript and tape prior to trial and raises no pretrial            objection, the district court is not obliged to interrupt the            trial  to screen the transcript for accuracy prior to its use            by the jury."  United States v. Font-Ramirez, 944 F.2d 42, 48                           _____________    ____________            (1st  Cir.  1991),  cert.   denied,  502  U.S.  1065  (1992).                                _____   ______            Instead,  the district court may simply listen to the tape as            it is played for the jury, follow the transcript, and rule on            specific  objections  as  they arise.    See  id.   Should  a                                                     ___  ___            defendant fail to offer  specific objections during  playback            of the tape, or offer an alternative transcript, the district            court does not abuse  its discretion by allowing the  jury to            use the transcript.  See id.                                 ___ ___                      Our  review  of  the  record reveals  no  abuse  of            discretion in the use of the government's transcript  in this            case.   At the  outset we  note that  Young does  not dispute                                         -20-                                          20            proper authentication.  Upon  determining that the jury could            hear  the tape with the  aid of the  disputed transcript, the            district judge  gave the requisite instruction  that the tape            and  not the  transcripts constituted  the evidence  the jury            should consider.  The  judge specifically instructed the jury            to  disregard anything in the transcript  that they could not            understand  from the  tape.   See Campbell,  874 F.2d  at 849                                          ___ ________            (once  judge instructs jury  that tape and  not transcript is            evidence, we review for abuse of discretion).  The judge also            instructed the jury  that he would  allow defense counsel  to            play the tape again  with a different transcript, "to  see if            you hear something different from what you might have thought            you heard when it was played with the other transcript before            you." The  judge reiterated this  instruction as part  of his            final instructions while charging the jury.5                            In  addition to  the  events at  trial, the  record            reflects  that  defense  counsel  possessed  copies  of   the            government's transcripts before trial, but raised no pretrial                                            ____________________            5.  Young also  asserts that by reviewing  the transcript and            helping  to fill  in  some of  the portions  the transcribing            company  found  unintelligible,  Officer  Twitchell  had  the            opportunity  to create  his own  prior consistent  statements            after  a motive  to  fabricate arose.    See Tome  v.  United                                                     ___ ____      ______            States,  115  S.  Ct.  696, 700  (1995)  (holding  that prior            ______            consistent  statement must  have been  made before  motive to            fabricate arose in  order to  be admissible).   We note  only            that, as  the district judge  twice instructed the  jury, the            evidence  consisted of the tape  and not the  transcript.  As            indicated, defense  counsel had ample opportunity  to present            an  alternative  transcript,  or  to  impeach  the transcript            through cross examination of Officer Twitchell.                                           -21-                                          21            objections specific to either of them.  While defense counsel            objected to the revised  transcript at trial on the  basis of            alleged  inaccuracies, she  neither made  specific objections            during  playback   of  the  tape,  nor  chose   to  offer  an            alternative  transcript,  even  though  the   district  judge            clearly indicated he  would permit  her to  do so.   On  that            basis  we cannot conclude that  the district court abused its            discretion  in  allowing the  jury  to  use the  government's            transcript.6   See Font-Ramirez, 944 F.2d at 48 (holding that                           ___ ____________            district  court   does  not  abuse   discretion  by  allowing            transcript in absence  of specific objections  or alternative            transcript).                        Finally, Young argues that  the tape and transcript            had a prejudicial effect  that far outweighed their probative            value under Rule 403 of the Federal Rules of Evidence.  Young            failed to  raise  this  objection at  trial;  we  review  the                                            ____________________            6.  Young also  challenges the admissibility of  the tape and            use  of  the transcript  on  the basis  of  the Confrontation            Clause  of the Sixth Amendment.   See U.S.  Const. amend. VI,                                              ___            cl. 3.  Young argues  that the transcript contains statements            by  the dispatcher, who did not appear at trial as a witness.            The  Confrontation Clause  exists  to  "advance  a  practical            concern for the accuracy  of 'the truth-determining process .            . . by assuring  that the trier of fact [has]  a satisfactory            basis  for evaluating  the  truth of  the prior  statement.'"            United  States v.  Panzardi-Lespier, 918  F.2d 313,  319 (1st            ______________     ________________            Cir. 1990).  On that basis, we have held that when an out-of-            court statement  "falls within  a firmly rooted  exception to            the hearsay  principle," its  admission does not  violate the            Confrontation Clause.   See id.   Having determined that  the                                    ___ ___            turret tape constitutes a prior consistent statement, and not            hearsay,  we are satisfied that its admission did not violate            the Confrontation Clause.                                           -22-                                          22            district court's decision,  therefore, only for plain  error.            See  Jacques v. Clean-Up Group,  Inc., 96 F.3d  506, 516 (1st            ___  _______    _____________________            Cir.  1996).   We will  disturb a  district court's  Rule 403            rulings,  moreover,  only  in   "'extraordinarily  compelling            circumstances.'"   United States v. Kayne, 90 F.3d 7, 12 (1st                               _____________    _____            Cir. 1996), cert. denied, __ S. Ct. __, 1997 WL 2646 (Jan. 6,                        _____ ______            1997) (quoting United States v. Montas, 41 F.3d 775, 783 (1st                           _____________    ______            Cir. 1994), cert. denied, 115 S. Ct. 1986 (1995)).  We see no                        _____ ______            such circumstances  in this  instance, and identify  no plain            error in admission  of the  tape and use  of the  transcript.            Young's Rule  403  argument, raised  for  the first  time  on            appeal, thus fails.                      Affirmed.                      Affirmed                      ________                                         -23-                                          23
