The Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.

United States Court of Appeals

For the First Circuit

Nos. 07-2209, 08-2308

UNITED STATES OF AMERICA,

Appellee,

v.

JEROME WEEKES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, U.S. District Judge]

Before

 Lynch, Chief Judge,

Souter, Associate Justice,*

and Stahl, Circuit Judge.

Stephen B. Hrones, with whom Hrones & Garrity was on brief,

for appellant.

John M. Pellettieri, U.S. Department of Justice, with whom

Lanny A. Breuer, Assistant Attorney General, Gary G. Grindler,

Deputy Assistant Attorney General, Carmen M. Ortiz, United States

Attorney, and Christopher F. Bator, Assistant United States

Attorney, were on brief, for the United States.

July 9, 2010
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SOUTER, Associate Justice. Appellant Jerome Weekes and

his associate Kelvin Brown were thrown out of a bar after arguing

with another patron. Brockton Police Officer Michael Darrah, who

was working as paid security at the bar, heard gunshots coming from

their direction, called for backup, and gave chase. Darrah caught

Brown as he and Weekes were trying to jump a fence. Weekes cleared

the fence but was arrested by another officer a moment later. A

search turned up Weekes’s cell phone and a loaded gun near where he

had landed, and two spent shell casings in the area from which

Darrah believed the sounds of shooting had come. 

Weekes was indicted on one count of being a felon in

possession of a firearm, 18 U.S.C. § 922(g), and was found guilty

by a jury. The district court sentenced him to 15 years’

imprisonment under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). We have consolidated his direct appeal of the conviction

and sentence with his appeal from denial of collateral relief under

28 U.S.C. § 2255. 

Weekes first claims a violation of his Sixth Amendment

right to a jury drawn from sources reflecting a fair cross section

of the community. See Taylor v. Louisiana, 419 U. S. 522 (1975).

To make out a prima facie violation of the fair-cross-section

requirement, a defendant must show, among other things, that the

alleged “underrepresentation is due to systematic exclusion of the

group in the jury-selection process.” Duren v. Missouri, 439 U.S.
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357, 364 (1979). Weekes’s evidence on this point, simply his

lawyer’s observation that there were apparently no AfricanAmericans in the venire, plainly did not suffice to demonstrate the

requisite systematic effort, and the district court properly

rejected the claim. The later decision by the District Court of

Massachusetts to establish a new juror selection plan avails Weekes

nothing; this court previously held that the plan in effect at the

time of Weekes’s trial complied with the Sixth Amendment, see In re

United States, 426 F.3d 1, 8 (1st Cir. 2005) (citing United States

v. Royal, 174 F.3d 1, 10-11 (1st Cir. 1999)), and even if this

panel had the authority (which it lacks) to overrule the prior

holding, nothing in the record would support doing that. 

Next, Weekes challenges several evidentiary rulings, to

some of which he objected and to some did not. Where he preserved

the issue, we review the district court’s ruling for abuse of

discretion, and will not reverse if the error was harmless, that

is, if it is highly probable that the error did not contribute to

the verdict. United States v. Scott, 270 F.3d 30, 46 (1st Cir.

2001). If the objection was not preserved, review is for plain

error. Id. 

First, the district court did not permit Weekes to crossexamine Agent Stephanie Schafer about testing for gunpowder

residue, finding such questioning to be outside the scope of her

direct testimony. The court did, however, let Weekes cross-examine
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two other witnesses on the subject and said he could question a

third if subpoenaed as a defense witness. There is no abuse of

discretion here, and certainly no possibility of harm. 

Second, the district court ruled that photographs of

Brown with injuries sustained the night of his arrest were

admissible during Weekes’s testimony only if the Government crossexamined him about the harm Brown sustained. The Government did

not do that, and the photographs stayed out. But again, the court

provided Weekes with an opportunity to offer the evidence through

another witness, ruling (at Weekes’s request) that the photos could

come in during the testimony of Brockton Police Officer Edward

Abdelnour. Under these circumstances, not to mention that the

testimony of Weekes and Officer Darrah about Brown’s injuries left

the photographs largely cumulative, any error in excluding the

photographs during Weekes’s testimony was harmless. 

Third, the district court permitted the Government to

impeach Weekes by asking him about his use of such nicknames as

“Ice” and “Unk” and about his use of false social security numbers.

Review here is only for plain error, and we find none. The

testimony about the social security numbers obviously went to

credibility and was therefore admissible under Federal Rule of

Evidence 608(b). The relevance to Weekes’s truthfulness of what

the Government calls his “aliases” may be less clear, but we do not
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see (and Weekes has not explained) how the jury’s awareness of

these particular nicknames could possibly have caused him harm.

Fourth, the district court did not allow Weekes to

testify that Brown had told him that he (Brown) had picked up the

gun after it was dropped from a passing vehicle from which the two

had been fired upon. Weekes argues that this statement is not

excludable under the hearsay rule because it was a statement

against penal interest and Brown was unavailable to testify at

trial. See Fed. R. Evid. 804(b)(3). The sticking point here is

the required showing of Brown’s unavailability, and we do not think

Weekes has demonstrated abuse of discretion in the district judge’s

finding that Weekes had not “show[n] at least a good faith effort

to procure the witness’[s] attendance,” a standard we have

described as “relatively high.” United States v. Mann, 590 F.2d

361, 367 (1st Cir. 1978). He apparently did try to find Brown

through Brown’s friends and family, but he neither subpoenaed Brown

at his last known address nor sought help from the district court,

local law enforcement, or, curiously, Brown’s counsel in the state

court action in which the two were co-defendants. See id. (good

faith standard “cannot be satisfied by perfunctory efforts”).

Weekes runs into the further admissibility problem that he has not

established that “corroborating circumstances clearly indicate the

trustworthiness of the [out-of-court] statement.” Fed. R. Evid.

804(b)(3). It is not enough to point, as Weekes does, to evidence
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that Brown made the statement; “there must be indicia of

trustworthiness of the specific, essential assertions” to be

repeated, United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997)

(internal quotation marks omitted), and Weekes points to none.

There was no abuse of discretion in excluding Brown’s hearsay.

Weekes’s rejoinder is that, if this is so, his trial

counsel must have been constitutionally ineffective for failing to

scale the barriers to admitting the hearsay raised by Rule

804(b)(3). But in accordance with usual practice, we decline to

review this claim as part of Weekes’s direct appeal, see United

States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), and we find it

likewise unsuitable for review in the present consolidated appeal

from denial of § 2255 relief. We have long recognized that “in the

absence of extraordinary circumstances, the orderly administration

of criminal justice precludes a district court from considering a

§2255 motion while review of the direct appeal is still pending.”

United States v. Gordon, 634 F.2d 638, 638 (1st Cir. 1980)

(internal quotation marks omitted). No such extraordinary

circumstances existed here, as the district court found. Thus, to

the extent the district court construed Weekes’s “request for

ruling on claim of ineffective assistance of counsel” as a petition

for relief under § 2255 and proceeded to rule on its merits, the

ruling was premature; the district court should have dismissed it
In light of this disposition, we need not address the 1

consequences of Weekes’s failure to request a certificate of

appealability. Cf. Sinochem Int’l Co. v. Malaysia Int’l Shipping

Corp., 549 U.S. 422, 431 (2007).

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without prejudice. See United States v. Diaz-Martinez, 71 F.3d

946, 953 (1st Cir. 1995).1

Finally, Weekes challenges his sentence under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The ACCA

mandates a 15-year minimum prison term for a defendant convicted of

being a felon in possession of a firearm if the defendant has

“three previous convictions . . . for a violent felony or a serious

drug offense, or both.” § 924(e)(1). Weekes denies that he has

three qualifying convictions, an issue subject to de novo review to

the extent properly preserved, United States v. Pakala, 568 F.3d

47, 54 (1st Cir. 2009), and plain error review to the extent it was

not, United States v. Duval, 496 F.3d 64, 84 (1st Cir. 2007).

Two of Weekes’s convictions were for drug offenses in

violation of Massachusetts law. They qualify as “serious drug

offense[s]” under the ACCA if “a maximum term of imprisonment of

ten years or more is prescribed by law.” § 924(e)(2)(A)(ii).

Weekes acknowledges that his crimes were potentially punishable by

ten years’ imprisonment, but calls this irrelevant because he was

in each instance tried in the alternative prosecutorial venue of a

state district court, see Mass. Gen. Laws ch. 218, § 26, which was

not authorized to sentence higher than two and one-half years. See
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Mass. Gen. Laws ch. 218, § 27 and ch. 279, § 23. But we rejected

this argument in United States v. Moore, 286 F.3d 47, 49 (1st Cir.

2002), and see nothing in the Supreme Court’s intervening decision

in United States v. Rodriquez, 553 U.S. 377 (2008), to require us

to revisit the issue. On the contrary, Rodriquez instructs us to

look to “the maximum term prescribed by the relevant criminal

statute,” id. at 391, rather than external limitations on “the term

to which the state court could actually have sentenced the

defendant” in a particular case, id. at 390. The limits came from

a mandatory guidelines regime in Rodriquez, id., but there is no

apparent reason for a different rule when the restriction on a

court’s sentencing authority is more general, as here. We

therefore see no error, much less the plain error that Weekes must

show as to these convictions, in the district court’s conclusion

that these offenses were serious drug offenses under the ACCA.

The district court also counted Weekes’s state conviction

for resisting arrest, see Mass. Gen. Laws ch. 268, § 32B, as an

ACCA predicate, which it was if resisting arrest is soundly

categorized as a “violent felony” under that statute. In United

States v. Almenas, 553 F.3d 27, 32-35 (1st Cir. 2009), we held that

resisting arrest qualified as a “crime of violence” under U.S.S.G.

§ 4B1.2, and because that Guideline and the ACCA are similarly

worded, our holding in Almenas applies here to treat Weekes’s

conviction as a violent felony under the statute. See id. at 34
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n.7. Weekes argues that Almenas is no longer good law following

the Supreme Court’s decision in Chambers v. United States, 129

S.Ct. 687 (2009), which he says requires separate consideration of

the two types of conduct proscribed by the Massachusetts statute.

See Mass. Gen. Laws ch. 268, § 32B (covering use or threat of force

and creation of substantial risk of bodily injury). But that is

what we did in Almenas; Weekes’s argument is off the mark. 

Weekes further suggests that, because stiffening one’s

arms or fleeing willfully can qualify as resisting arrest in

Massachusetts, we must look at the record of his conviction to

determine if his conduct was in fact violent. See Shepard v.

United States, 544 U.S. 13 (2005). But in Almenas, we rejected

this argument, which is at odds with the categorical method for

identifying qualifying felonies, 553 F.3d at 35 & n.9, and we do

not read Chambers to undermine our reasoning. In any event, arm

movement and flight by an arrestee of the type that would violate

the Massachusetts statute strikes us as more akin to escape than

the failure to report that Chambers held not to be a violent

felony. See Chambers, 129 S.Ct. at 691 (“The behavior that likely

underlies a failure to report would seem less likely to involve a

risk of physical harm than the less passive, more aggressive

behavior underlying an escape from custody.”); Commonwealth v.

Montoya, 73 Mass. App. Ct. 125, 130, 896 N.E.2d 638, 642 (2008)

(construing § 32B to reach “a defendant’s flight where the
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circumstances of such flight expose his pursuers to a ‘substantial

risk of bodily injury’” but not “mere flight on foot from arrest”

(emphasis omitted)); see also United States v. Pratt, 568 F.3d 11,

22 (1st Cir. 2009) (holding that escape from secure custody is a

violent felony). 

Because the two drug offenses and conviction for

resisting arrest provide the three necessary predicates for the

application of an ACCA minimum sentence, there is no need to

consider whether the conviction for assault and battery would also

qualify in the aftermath of Johnson v. United States, 130 S.Ct.

1265 (2010).

We affirm the district court’s judgment of conviction and

sentence in Appeal No. 07-2209. We affirm the order in part and

vacate in part in Appeal No. 08-2308, and we remand the case for

further proceedings consistent with this opinion. 

So ordered.