* Of the Eighth Circuit, sitting by designation.



# United Stat es Court of Appeals

For the First C ircuit

No. 02-1729 UNITED STATES, Appellee,

v. AUSTIN R. WILKERSON, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge ]

Before Torruella, Circuit Judge , John R. Gibson, * Senior Circuit Judge , and Lynch, Circuit Judge . Miriam Conradfor appellant. Jonathan L. Marcus , United States Department of Justice, with whom Michael J. Sullivan , United States Attorney, District of Massachusetts, and John T. McNeil , Assistant United States Attorney, District of Massachusetts, were on brief, for appellee.

June 9, 2005-2- JOHNR. GIBSON, Senior Circuit Judge . A ustin R. Wilkerson appeals his conviction for possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1), possessing more than five grams of cocaine base with intent to distribute under 21 U.S.C. § 841(a)(1), and carrying a firearm in connection with a dru g trafficking offense under 18 U.S.C. § 924(c)(1). Wilke rso n asserts that the district court erred by admitting prior consistent statements of a government witness in violation of Fed. R. Evid. 106 and the common law, permitting a government witnes s to interpret one of his post-arrest statements in violation of Fed. R. Evid. 701, and allowing the prosecutor to improperly vouch for his witnesses in summation and engage in other forms of prosecutorial misconduct. Wilkerson also challenges the sufficiency of the evidence to establish a nexus between the fi rearm and interstate commerce, and he argues that h is sentence should be remanded pursuant to United States v. Booker , 125 S. Ct. 738 (2005). We holdthat the district court erred in the admission of prior consistent statements, but this error was harmless. We remand to the district court for resentencing, and we af firm the district court on all other issues.

Boston police officers Tom Joyce and Ed Fleming stopped Wilkerson after he made an i llega l U-turn. During the stop, the officers learned he was driving with a suspended license. Officer Joyce asked Wilkerson to step out of the vehicle, but Wilkerson-3-

refused. Joyce and Wilkerson struggled for the door while Officer Fleming called for back-up. Wilkerson then drove off and a chase ensued. The car chase ended when Wilkerson abandonedhis vehicle andtook off on foot. F rom abou t thirty to forty feet away, the officers saw Wilkerson holding his right side around his waist area. Joyce informed his partner, "Eddie, be careful, I think he has a gun." Joyce then br oadca st over the radio, "He's reaching for his budge," meaning that Wilkerson was reaching for the waistbandarea where he thought Wilkerson had a gun. The officers reportedthat Wilkerson continued to hold his right waist area while they followed him, but they did not actually see a gun.

The officers pursued Wilkerson onto Hartwell Street. Officer Joyce testified at trial that he was about sixty feet away when he saw Wilkerson turn into an alley between houses at 11 and 5 Hartwell on the north side of the street. Offic er Fleming testifiedthat he had just turned onto Har twell when he saw the

same thing. As Wilkerson turned into the alley, Joyce slowed down andpeered down the driveway on the south side o f 11 Hartwell, between 11 and 15/17 Hartwell, to see if Wilkerson would come back t he opposite way. He did not. When Joyce reached the a lley, h e

saw Wilkerson climbing over a six- or sev en- foot-high fence, no lon ger clutch ing his waist area. Joyce did not see anything in Wilkerson's hands or belt as he lowered himself over the fence.-4-

Joyce did not attempt to scale the fence, but instead turned around andran up the drivewa y. T here Joyce saw Wilkerson running west through the backyards toward Cheney Street. Officers from another police unit arrested Wilkerson when they caught him running at a slow jog on Maple Street near Cheney.

After Wilkerson's arrest, officers were ordered to retrace the route of the foot chase looking for anything he might have discarded. Another officer accompanied by Joyce found a gun and12.55 grams of crack cocaine in the alley between 11 and 5 Hartwell. The items were described as clean and dry and lying on top of damp, dirty refuse. The gun was cocked, loaded, and ready to be fired. The key factual dispute at trial was whether Wilk erso n ran up the alley where the gun and drugs were found, between 5 and 11 Hartwell, or whether he r an up the driveway bet ween 11 and 15/17 Hartwell, which he would have had to pa s s before reaching the alley. I.

Both of the evidentiary issues Wilkerson raises on appeal involve testimony about his flight path on Hartwell Street. We first address Federal Rule of Evid ence 106 and the common law to determine when prior consistent statements may be used to rehabilitate a witness's credibility.

Officer Fleming testified that he saw Wilkerson turn into the alley between 5 and 11 Hartwell. Defense counsel attempted to-5-

impeach Fleming's credibility on this subject by eliciting testimony that (1) he did not describe the alley in the radio broadcasts he made while chasing Wilkerson, (2) he referred to the alley as a driveway in his police report, and (3) in state grand jury testimony he stated that Wilkerson ran between the second and thirdhouses on Hartwell, which would be betwe en 15 /17 and 11 if counting from the direction in which they ran. Fleming was impeachedon other subjects with his federal grand jury testimony, but none concerned Wilkerson's flight path.

To rehabilitate his credibility, the government asked Officer Fleming on redirect examin ation, "[A]t any time prior to writing the report or in testifying in thi s case, did you ever indicate that [Wilkerson] ran up anyplace other than that area between 5 and 11 Hartwell?" H e answer ed no. He was then asked, "[A]t any prior time, writing a report or in your prior testimony, didyou indicate that the defendant ran up any location other than this location between 5 and 11 H artwe ll?" Again he answered no. Finally he was a ske d, referring to his federal grand jury testimon y, "[D ]o you recall what you said in that testimony?" Fleming answered: A. I testified to the fact that I saw the d efe ndant run on to Hartwell Street a nd run up an alleyway between two homes on Hartwell Street. Q. Andwere you shown two photographs in the grand jury? A. I was.1 "When a writing or recorded statement or part thereof is

in troducedby a party, an adverse party may requir e th e introduction at that time of any other part or any other writing or recordedstatement which ought in fairness to be considered contemporaneously with it." Fed. R. Evid. 106. -6- Q. Andwhat did you identify those photog ra phs as being? A. As the alleyway the defendant ran. Defense couns e l objected to this line of questioning. She argued that the testimony was hearsay and should not be allowed

as non- hearsay prior consistent statements under Federal Rule of Evidence 801(d)(1)(B) because it was not offered to rebut a charge of recent fabrication. The district court agreed and ruled that Fleming's testimony could not be admitted under Rule 801. Instead, the court allowed the testimony under R ule 106 1 , the rule of completeness. Defense counsel maintained her objection. The district court, sua sponte, gave a limiting instruction directing the jury to consider the testimony o nly for the officer's credibility and not for the truth of the statements.

We review the distr ict court's ruling for abuse of discretion. See United States v. Mi llan , 230 F.3d 431, 434 (1st Cir. 2000). We conclude that the district court erredin admitting the testimony, but the error is harmless.

In United States v. Simonelli , 237 F.3d 19, 25-29 (1st Cir. 2001), this court addressed the same issues presen ted he re. On cross-examination, a witness's prior inconsistent statements-7-

were used to impeach his credibility. On redirect the government askedthe witness about statements he made to the grandjury which

were consistent with his trial testimony. Some of the questions went beyond the specific points covered on cross-examination, but all w ere within its general scope. Many of the statement s wer e used only to rehabilitate the witness, rather than as substantive evidence. See id. at 26.

In Simonelli we stated that when p rio r consistent statements are admitted to rehabilitate a witness, admissibility is "determined by the interplay between the rule of completeness and the common law doctrine about prior consistent statements." Id. at 27. We noted that both the rule of completeness andthe common law doctrine allow prior consistent statements when they tend to show that a statement used to impeach a witness is not really inconsistent when understood in its proper context. See id. at 27- 28. The government argues that Officer Fleming's testimony

was properly admitted bec ause it was offered to rebut the impression created by defense counsel's cross-examination that Officer Fleming had give n conflicting or uncertain accounts of Wilkerson's flight path. However, Simonelli makes clear that prior consistent sta teme nts must at least have "some rebutting force beyondthe mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony." See id.-8-

at 27 (quoting United States v. Pierre , 781 F.2d 329, 331 (2d Cir. 1986)). The redirect testimony at issue does not meet the required standar d . Defense counsel cross-examined Officer Fleming about inconsistencies in the way he describedWilkerson's flight path and h is fai lure to broadcast information about the alley over the police radio. Confirming on redirect that the officer had never describeda different flight path did not clarify or otherwise provide context for the statements used to impeach Fleming. Rather, the testimony only bolstered Officer Fleming's credibility genera lly b y restating what had already been said. That kind of rehabilitation is imp ermissible. See Simonelli , 237 F.3d at 28 ("There is no rule admitting all prior consistent statements simply to bolster the credibility of a witness who has been impeached by particulars.").

The government argues that any error in admitting the testimony is harmless. "A non-constitutional evidentiary error is harmless . . . so long as it is highly probable that the error did not influence the verdict." United States v. Piper , 298 F.3d 47, 56 (1st Cir. 2002). Several factors lead us to conclude that the error is harmless.

The government's case against Wilkerson was strong even without Officer Fleming's redirect testimony. Wilkerson drove away from the officers, prompting a car chase; Wilkerson abandoned his vehicle and ran from the officers on foot; both officers saw-9-

Wilkerson holding his waist area and believed he had a gun; Officer Joyce warned other off icers over the police radio that Wilkerson was reaching for his "budge," a term that conveyed Joyce's belief that Wilkerson had a gun; Joyce, who followed closer behind Wilkerson during the cha se and was the government's key witness, also testified that he saw Wilkerson run up the alley where the gun and drugs we re found; the gun and drugs were clean and dry in an otherwise damp and dirty alley, indicating that they had not been there very long; and shortly after running from the alley where the gun and drugs were f ound, Wi lkerson gave up the chase. The exculpatory evidence Wilkerson presented at trial was minimal and unpersuasive.

Moreover, Officer Fleming's redirect testimony was not unique and was used only to rehabilitate his credibility. "By definition, prior consistent statements do not consist of new substantive infor m ation. Their impact comes from corroborating other, perhaps less compelling, evidence." UnitedStates v. Awon , 135 F.3d 96, 101 (1st Cir. 1998). At most the testi m ony strengthenedOfficer Fleming's previous testimony by corroborating his story. While this may warrant a new trial in some cases, it is highly probable that the corroborating testimony didnot influence the verdict in this case. We conclude that the district court's error is harmless.-10- II. The second evidentiary issue Wilkerson raises is whether the district court violated Federal Rule of Evidence 701 by allowing a government witness to interpret one of Wilkerson's postarrest statements. The decision to admit lay opinion tes tim ony pursuant to Rule 701 is reviewed for abuse of discretion. United States v. Tom , 330 F.3d 83, 94 (1st Cir. 2003). We conclude that the district court did not abuse its discretion in admitting the testimony. Wilkerson described his route during the foot chase in an interview after his arrest w ith Boston Police Detective Jeremiah Benton. Detective Benton testified that Wilkerson told him that "he g rab bed the tall fence to get up on the small fence." Over defendant's objection, Benton te stifi ed that he understood the defendant "to mean that he grabbed on to a higher fence to pull himself up on to a lower fence to get over the higher fence." Detective Benton then illustrated this testimony by pointing to parts of a fence in a photograp h of the alley between 11 and 5 Hartwell. I n its closing argument, the government asserted that Wilkerson's post-arrest statement referredto the fence in the back of the alley in which Officers Joyce and Fleming saw the defendant

run. The government argues that this testimony is admissible und er Rule 701, which permits the admission of lay opi nio n-11-

testimony only when it is: (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of t he w itness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701. Wilkerson argues that the testimony d id no t meet the requirements of (a) or (b).

The first element of Rule 701 is " the familiar requirement of first-hand knowledge or observation." Fed. R. Evid. 701 advisory committee's note. This court has noted that the requirement is met when the testimony is based on the personal perception of the witness and does not require any irrational leaps of logic for the witness to render the opinion. See Lynch v. City of Boston , 180 F.3d 1, 16 (1st Cir. 1999). Wilkerson argues that this test is not met because Detective Benton lacked any special understanding of what Wilkerson meant and he had no special familiarity with the are a. This argument is unpersuasive. Detective Benton testified that he was familiar with the alley in which the gun and drugs were found andwith the driveway that defense coun sel a rgued Wilkerson used to flee. He walked up the alley before interviewing Wilkerson, he viewed the driveway the

same night of Wilkerson's arrest, andhe walked up the driveway the next day. He was thus in a position to assess which fence Wilkerson referred to in his statement. Benton' s o pinion is therefore rationally based on his perception.-12- Wilkerson also argues that the "helpfulness" requirement is not met because the statement itself is clear and the jury had other evidence before it from which it could determine which area Wi lker son was describing. Wilkerson points to several cases holding that the interpretation of clear statements is not helpful to the jury. See, e.g. , United States v. Dicker , 853 F.2d 1103, 1109 (3d Cir. 1988)("[T]he interpretation of clear statements is not permissible, and is barred by the helpfulness requirement of .

. . Fed. R. Evid. 701."). However, these cases in volve the interpretation of facially clear and coherent statements. Wilkerson's statement that he "grabbedthe tall fence to get up on the small fence" is vague and confusing. It is no t at all clear from the photographs of the alley and the driveway what Wilkerson meant. Detective Benton saw the area immediately after Wilkerson's arrest. He walked through the alley before taking Wilkerson's statement and walked through the driveway the next morning. Although the jury viewed the area, it was before the y heard any testimony. Under the circumstances, the district court could have reasonably determined that Detective Benton was in a unique position to help the jury understand what Wilkerson might have meant. See Tom , 330 F.3d at 94. Accordingly, we conclude the district court di d not abuse its discretion in admitting the testimony.-13- III. Wilkerson also contends that the pro secu tor engaged in misconduct in his closing argument and rebuttal. There was no

co ntem poraneous objection to the closing argument or rebuttal at trial, so we review for plain error. United States v. FigueroaEncarnacion , 343 F.3d 23, 27 (1st Cir. 2003), cert. denied , 540 U.S. 1140 (2004). Review for plain error requires determining whether an error occurred which was clear or obvious and which not only affected the defendant's substantial rights but also seriously impairedthe fairness, integrity, or public reputation of judicial proceedings. United States v. Du arte , 246 F.3d 56, 60 (1st Cir. 2001). Wilkerson argues there were five separate instances of prosecutorial misconduct, but we conclude there were none.

First, Wilkerson asserts that the government improperly vouched for the credibility of the officers' testimony by arguing in rebuttal that if the officers wanted to lie they would have made up a better story. "[A] prosecutor improperly vouches for a witness when she places the prestige of her office behind the government's

case by, say, imparting her personal belief in a witness's veracity

or implying that the jury should credit the prosecution's evidence simply because the government can be trusted." United States v. Perez-Ruiz , 353 F.3d 1, 9 (1st Cir. 2003 ). In Pe rez-Ruiz , we determined that the statement, "If they [were going to] make up a story, wouldn't it have been a better story?" was not improper-14-

vouching, but rather "a log ical counter to the assertions of defense counsel . . . that various government witnesses had fabricatedtheir test imo ny . . . ." Id. at 9-10. The comments before us are very similar. In response to defense counsel's assertions that the officers may have fabricated their stories, the government argued that if the officers had wanted to lie, they couldhave said they saw defendant with a gun or otherwise embellishedtheir testimony to make the case better. These statements do not constitute improper vouching. See also FigueroaEncarnacion , 343 F.3d at 29 (admission of the government's statements that witnesses could have lied to make a better story was "not remotely plain error").

The prosecutor also stated several times in rebuttal that the officers "didn't stretch the truth here" when noting that the officers testified that they saw Wilkerson reach for his budge area but did not testify that they actually saw a gun. With these statements the prosecutor comes closer to the line of imparting his personal belief in the witness's veracity. However, there is no plain error, since if there is error, it is not clear or obvious andit does not seriously impair the fairness, integrity, or public reputation of judicial proceedings. See United States v. Sullivan , 85 F.3d 743, 751 (1s t Cir. 1 996) (not plain error where the government in closing argument andrebuttal stated that one witness "came off pretty believable," that another "couldn't have lied-15-

about anything," that another "toldyou the truth," and that all of them "were up there telling the truth").

Second, Wilkerson contends that the government improperly shifted the burden of proof to the defendant by arguing that, for the jury to find that Wilkerson went through the driveway and not the alley, they would have to find that Officers Joyce and Fleming di d not tel l the truth. Wilkerson relies on United States v. Roberts , 119 F.3d 1006 (1st Cir. 1997), where the court found improper burden shifting when the government stated "when a defendant does 'go forward' to offer evidence, 'the defendant has the same responsibility as the government and that is to present a compelling case.'" Id. at 1015. The prosecutor's argument in this case is not like the statements in Roberts . Here, the government didnot argue that Wilkerson had the burden to prove another set of facts. Rather, the government argued that if the jury found that Wilkerson ran up the driveway, they would necessarily have to find that the officers did not tell the truth, because the officers testifiedthat he ran up the alley. T his logic al response to Wilkerson's theory of the case is not plain error.

Third, Wilkerson argues that the government impermissibly commentedon Wilkerson's decision not to testify and shi fted t he burden of proof when he said "there's no real evidence" that he did not go up the alley and "pretty much nothing" to say that Wilkerson

ran up the driveway. A prosecutor's remarks violate a defendant's-16-

Fifth Amendment guar a ntee against self-incrimination if "in the circumstances of the particular case, the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Wihbey , 75 F.3d 761, 769 (1st Cir. 1996). We are not persuaded the jury would naturally and necessarily take the statements to be a comment on Wilkerson's decision not to testify. In the context of the trial, it is likely the comments referred to Wilkerson's failure to produce other evidence supporting his theory of the case. At most, the comments

are ambiguous. Moreover, there was significant evidence of Wilkerson's guilt and the judge instru cted t he jury of the defendant's right not to testify and of the government's burden of proof. We conclude that these statements do not rise to the level of plain error. See Wihbey at 770-71 (no plain error where there is ambiguity, jury instruction, and significant evidence of guilt).

Fourth, Wilkerson contends that the government misstated the evidence. The prosecutor stated several times that the witnesses saw something "heavy" in Wilkerson's right hand. He also referredto "the fence" and "that fence" in the alley when discussing Wilkerson's post-arrest statement, implying that Wilkerson had identified the fence in the alley to Detective Benton andhad de scribe d pulling himself up it. These misstatements involved reasonable inferences that the prosecutor asked the jury-17-

to draw from the facts. They were de minimus and did not stray far enough from the actual testimo ny to indicate prejudice or bad faith. Moreover, the judge instructed the jury that the lawyers' assertions were not evidence. The statements did not "so poison[] the well that the trial's outcome was likely affected." See United States v. Morales-C art agena , 987 F.2d 849, 854 (1st Cir. 1993). See also United States v. Yanovitch , 101 F.3d 202, 213 (1st Cir. 1996). We therefore conclude that these statements were not plain

error. Finally, Wilkerson's claim that the prosecutor demeaned the defense by calling one of the defense theories a "redherring" is meritless. See United States v. Bennett , 75 F.3d 40, 46-47 (1st Cir. 199 6)(did not cross the line to call a defense argument a "diversion" that "doesn't pass the laugh test"). IV . Wilkerson contends that evidenc e t hat the gun was manufacturedoutside of Massachu sett s in 1918 is insufficient to establish a nexus between the firearm and interstate commerce under § 922(g). He points to the S upreme Cou rt's decisions in United States v. Lopez , 514 U.S. 549 (1995), United States v. Morrison , 529 U.S. 598 (2000 ), and Jones v. United States , 529 U.S. 848 (2000), as calling into question whe ther the minimal nexus standard, which requires only that the firearm has traveled in interstate commerce at some time, sufficiently satisfies the-18-

interstate commerce element of § 922(g). See Scarborough v. United States , 431 U.S. 563, 575-78 (1977)(establishing minimal nexus standard). In United States v. We ems , 322 F.3d 18 (1st Cir.), cert . denied , 540 U.S. 892 (2003), we held that Jones does not alter Scarborough to require proof that the defendant transported the firearm in interstate commerce. Id. at 26. Every Circuit that has addressed the mini mal nexus requirement after Morrison and Jones has also concluded that the nexus to interstate commerce is establishedif the firearm "has traveled at some time in interstate

comm erce." United States v. Gaines , 295 F.3d 293, 302 ( 2d Cir . 2002); see also United States v. Darrington , 351 F.3d 632, 634 (5th Cir. 2003), cert. denied , 124 S. Ct. 2429 (2004); UnitedStates v. Gallimore , 247 F.3d 134, 138 (4th Cir. 2001). We likewise conclude that the evidence that a firearm has traveled at some time in interstate commerce is sufficient to establish a nexus between the firearm and interstate commerce. V. Wilkerson argues in a supplemental brief that, in light of the Supreme Court's decision in UnitedStates v. Booker , 125 S. Ct. 738 (2005), his sentence should be remanded to the district court. Wilkerson concedes that he did not preserve this issue in the district court, so our review is for plain er ror. United States v. Antonakop oulos , 399 F.3d 68, 76 (1st Cir. 2005). A d etermination of plain error is appropriate where "there [ is] a n-19-

'error' that is 'plain' and that 'affect[s] substantial rights.'" Id. at 77 (quoting United States v. Olano , 507 U.S. 72 5, 732 (1993)). If those factors are met, we may correct the error only if it "s erio usly affects the fairness, integrity or public reputation of judicial proceedings." Id. (citation omitted).

Wilkerson satisfie s the first two requirements of the Olano plain error test because his sentence was imposed under a mandatory Guidelines system. Id. at 77. In order to prove the secondtwo requirements, prejudice and fundamental unfairness, Wilkerson need only present a "reasonable indication that the district judge mig ht well have reached a different result under advisory guidelines." United States v. Heldeman , 402 F.3d 220, 224 (1st Cir. 2005) (remanding for resentencing where defendant's age andhealth were worthy of consideration but did not warrant a downward departure under the mandatory Guidelines).

The district judge sent enced Wilkerson to the lowest available sentence under the Guidelines. He repeatedly expressed his concern about disparate treatment between federal and state court sentences in similar cases , but stated that the Guidelines didnot permit him t o t ake that disparity into account. The district judge also observed that Wilkerson had the most horrible young life he had seen in 17 years on the bench. Both the need to

av oid un warranted sentencing disparities and the history and characteristics of the defendant are am ong the factors to be-20-

consideredby the now advisory Guidelines. 18 U.S.C. § 3553(a). As this court recognized in Heldeman , where there is a reasonable indication that the distri ct jud ge might well have given a diff erent sentence under an advisory guidelines regime, and it would be easy enough for him to say no with a minimum expenditure of effort, we are persuaded that remand is required. 402 F.3d at 224. We express no view on whether defendant should be resentenced or on any possible resentence.

We affirm Wilkerson's conviction and remand the case to the di stri ct judge for further sentencing proceedings consistent with this opinion.