UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 19-cr-35-01-JL Opinion No.

Romeo Tyree Hayes

MEMORANDUM ORDER

Ahead of defendant Romeo Hayes’s jury trial on one count of

assault in a federal prison, Hayes and the prosecution each

filed two evidentiary motions in limine. The court orally ruled

on these four motions at the final pretrial conference, but this

order serves to set forth the basis for (and in some cases,

refine and clarify) the rulings in further detail. See, e.g.,

United States v. Joubert,

, 55 n.1 (D.N.H.

2014), aff’d,

(1st Cir. 2015) (citing In re Mosley,

, 1328 (11th Cir. 2007) (noting a district court’s

authority to later reduce its prior oral findings and rulings to

writing)).

The court reminds the parties that these rulings are made

without prejudice to revisiting particular issues in response to

circumstances that might arise during trial. Furthermore, these

rulings are limited to grounds argued in the parties’ filings

and raised at the final pretrial conference and oral argument.

The court reserves the right to assess other factors at trial, such as hearsay, authenticity, and best evidence, see Fed. R.

Evid. 800 et seq., 900 et seq., and 1000 et seq., and where

appropriate, arguments and grounds not raised by counsel. To

the extent the court here rules that evidence may be admitted

for a limited purpose, see Fed. R. Evid. 105, it will give the

jury a limiting instruction upon the request of counsel at

trial.

Background

This is an assault case, not usually brought in federal

court, but for the fact that the alleged assault occurred in a

federal prison. The indictment alleges that Hayes, while

incarcerated at FCI-Berlin, knowingly assaulted a fellow inmate,

Lorence Smith, resulting in serious bodily injury to Smith in

that Smith’s nasal bones, mandible, and pterygoid plate were

fractured. Hayes anticipates asserting a claim of self-defense.1

The prosecution moves to preclude Hayes from introducing

testimony regarding specific instances of the victim’s prior

conduct and from introducing certain statements made by Hayes

after the alleged assault. The defendant moves to preclude the

prosecution from impeaching his testimony with his prior felony

1 See Def.’s Obj. to Gov.’s Mot. in Limine to Exclude Def.’s Hearsay Statements (doc. no. 37) at 2.

2 convictions and from introducing a recorded section of a prison

phone call he purportedly made after the alleged assault.

Analysis

A. Specific instances of victim’s prior conduct

The prosecution moves to exclude evidence and testimony

regarding specific instances of the alleged victim’s past

conduct, including Smith’s prison disciplinary records, which

memorialize sanctions by the Bureau of Prisons (“BOP”) for

fighting other inmates and possessing weapons prior to the

alleged assault.2 The prosecution argues that such evidence is

inadmissible “character” and “prior bad acts” evidence. The

court disagrees in part. Although evidence of specific

instances of conduct is inadmissible to prove Smith’s propensity

for violence or that Smith acted in accordance with such a

propensity on this occasion, some such evidence may be

admissible to corroborate Hayes’s testimony regarding Smith’s

violent reputation, in order to prove the reasonableness of

Hayes’s belief that Smith posed a threat to him.

Ordinarily, evidence of a person’s character and specific-

conduct propensity is inadmissible under Rule 404. However, in

a criminal case, “a defendant may offer evidence of an alleged

victim’s pertinent trait” in the form of “an opinion” or

2 Document no. 24.

3 “testimony about the [victim’s] reputation.” Fed. R.

Evid. 404(a)(2)(B) and 405(a). It is important to understand

that Rule 404 governs whether, and under what circumstances,

character and prior-bad-acts evidence is admissible, while

Rule 405 governs how, and by what method, such evidence may be

elicited and introduced.

Under these rules, a criminal defendant may testify about

his knowledge of the alleged victim’s reputation for violence at

the time of the alleged assault, Fed. R. Evid. 405(a), as that

is an exception to the general rule prohibiting character

evidence regarding victims’ “pertinent” character traits. See

Fed. R. Evid. 404(b)(2)(B). A defendant may also offer evidence

of “specific instances” of an alleged victim’s conduct to prove

a character trait when it is not only pertinent (see id.), but

“an essential element” of a charge, claim, or defense. Fed. R.

Evid. 405(b). But an alleged victim’s dangerous or violent

character, while certainly “pertinent” under Rule 404, is not

normally or necessarily an “essential element” of self-defense

under Rule 405. United States v. Gulley,

(5th

Cir. 2008) (“a self-defense claim may be proven regardless of

whether the victim has a violent or passive character”); United

States v. Keiser,

(9th Cir. 1995) (“the

victim’s violent nature is not essential to a successful claim

of self-defense”); First Circuit Pattern Criminal Jury

4 Instructions 5.04 (elements of self-defense are that (1)

defendant acted under an immediate threat of serious bodily

injury or death; (2) had a well-grounded belief that the threat

would be carried out; and (3) had no reasonable opportunity to

escape, or otherwise frustrate the threat). Hayes thus may not

submit extrinsic evidence of Smith’s violent acts in order to

prove Smith’s character or to prove that he more likely acted in

a dangerous or violent manner in his encounter with the

defendant giving rise to this charge.

But Hayes may submit evidence of Smith’s violent acts

solely to corroborate his Rule 405(a) testimony regarding his

knowledge and understanding of Smith’s violent character. In

other words, Hayes may not submit testimony or records of

specific instances of Smith’s conduct to directly prove Smith’s

character or to prove that Smith in fact committed those acts,

but he may submit evidence that directly supports the

credibility of his testimony regarding Smith’s reputation or his

opinion of Smith’s character. Hayes thus may only submit

evidence of specific instances of Smith’s conduct that directly

corroborate his own testimony, including those portions of

Smith’s prison disciplinary records that directly corroborate

Hayes’s professed knowledge of Smith’s dangerous and violent

5 character.3 Hayes may either submit a proffer or, if he chooses,

submit himself to a voir dire examination outside of the

presence of the jury to determine the scope of this

conditionally admissible evidence for this limited purpose. See

Fed. R. Evid. 104.

The prosecution’s motion is thus granted except as to

evidence of specific instances of Smith’s conduct that is

offered only to corroborate Hayes’s testimony regarding Smith’s

character, as it pertains to his assertion of self-defense. If

requested, the court will give a limiting instruction to ensure

that the jury does not consider the evidence as propensity

evidence to show that the alleged victim acted in a violent or

dangerous manner during the confrontation in question. See Fed.

R. Evid. 105; Fed. R. Evid. 404(a).

B. Possible hearsay statements by defendant

The prosecution moves to preclude Hayes from submitting

evidence of two separate statements Hayes made to prison

3 Hayes argues that such evidence is also admissible as to his credibility under Rule 404(b), because the list of permissible purposes under that subsection is non-exhaustive. Fed. R. Evid. 404(b) (“Evidence of a crime wrong or other act . . . may be admissible for another purpose, such as proving motive, opportunity, intent, knowledge, identity, absence of mistake, or lack of accident.”); see United States v. James,

(9th Cir. 1999) (admitting under 404(b) records of victim’s prior acts to corroborate defendant’s credibility in self- defense case). Adopting this route to admissibility would not alter the scope of admissible evidence.

6 personnel after the alleged assault.4 First, directly after the

assault prison employees escorted Hayes from the scene to the

facility’s Secure Housing Unit. During the walk, Hayes stated

without prompting or questioning that he “had no choice.”5

Second, several weeks after the alleged assault, Special

Investigative Services (“SIS”) Tech Glenn Brown interviewed

Hayes. Hayes told SIS Tech Brown that “I was protecting

myself.”6 The prosecution, which represents that it will not

introduce those statements at trial (removing them from the

category of adverse-party admissions under Rule 801(d)(2)),

argues that both statements are inadmissible hearsay. See Fed.

R. Evid. 801, 802.

Hayes argues that his “had no choice” statements while

being led away from the scene of the alleged assault are

admissible as “present sense impressions” or “excited

utterances,” exceptions to the Rule Against Hearsay. See Fed.

R. Evid. 803(1), 803(2). The court agrees that the statements

are excited utterances. That exception requires “(1) a

startling event or condition; (2) a statement made while the

declarant was subject to the influence of the event or

4 Document no. 36. 5 See Statement of Supervisor Laflamme (doc. no. 37-1); Statement of Foreman Knall (doc. no. 37-3). 6 Interview report (doc. no. 37-2).

7 condition; and (3) a relation between the statement and the

event or condition.” United States v. Bailey,

(1st Cir. 1987). The defendant’s statements were made just

after the alleged assault, and concerned those events. One of

the correctional officers who escorted Hayes describes him as

“tense and trembling” at this time, to the degree that they

inquired about his ability to maintain composure while walking.7

Hayes was thus still subject to the influence of the recent

events when he made the statement. The statements meet the

requirements of the hearsay exception.8

The prosecution argues that the statement does not fit

within the rationale of the excited utterance exception because

it is self-serving. Both cases it cites in support involve a

defendant’s statements denying responsibility that allegedly

fell within the exception because of excitement caused by the

discovery of contraband by the police. United States v.

Esparza,

(8th Cir. 2002) (“Police discovery

of contraband is not ordinarily the kind of ‘startling event’ to

which this exception applies.”); United States v. Sewell, 90

7 Statement of Foreman Knall (doc. no. 37-3). 8 The court is skeptical, under these particular circumstances, that Hayes was “describing or explaining an event or condition” within the meaning of a present sense impression, but need not reach that issue because the statement is admissible as an excited utterance. See Fed. R. Evid. 803(1).

, 327 (8th Cir. 1996).9 Hayes’s excitement stemmed not

merely from “learning of the evidence against him,” but from the

alleged physical confrontation. See Sewell, 90 F.3d at 327.

The apparently self-serving nature of Hayes’s statement may

affect its weight as evidence, but does not preclude its

admission.

Hayes’s statement to SIS Tech Brown, several weeks after

the alleged assault, is hearsay and will not be admitted, see

Fed. R. Evid. 801, 802, except, potentially, to rehabilitate

Hayes’s credibility as a witness as a prior consistent statement

under Rule 801(d)(1)(b). Again, the interview statement is not

the statement of a party opponent because Hayes, and not the

U.S. Attorney, is seeking to introduce it. See Fed. R.

Evid. 801(d)(2). But if Hayes’s credibility as a witness is

attacked on another ground and the statement made to SIS Tech

Brown is consistent with Hayes’s testimony, under the

appropriate circumstances it will be admissible to rehabilitate

Hayes’s credibility as a witness. See Fed. R.

Evid. 801(d)(1)(B).

9 Similarly, United States v. Pursley states that “the presence or absence of self-interest” is a factor considered in “determining whether a declarant made a statement under the stress of a particular event.”

(10th Cir. 2009). Here, the strong, documented evidence that Hayes was “under the stress” of the recent events outweighs any effect of the presence of self-interest.

9 The prosecution’s motion is denied as to Hayes’s statement

directly after the alleged assault, and taken under advisement

as to the statement to SIS Tech Brown, in that the latter

statement may become admissible if Rule 801(d)(1)(B) is

triggered at trial.

C. Defendant’s prior convictions

Hayes moves to prohibit the prosecution from impeachment

with evidence of his prior District of Columbia convictions for

Unauthorized Use of a Vehicle During a Crime of Violence,

Destruction of Property, Assault with intent to Kill, and

Possession of a Firearm During a Crime of Violence.10

Generally, when a defendant takes the witness stand, the

prosecution can challenge the defendant’s “character for

truthfulness by evidence of a criminal conviction . . . for a

crime that, in the convicting jurisdiction, was punishable by

death or by imprisonment for more than one year” if “the

probative value of the evidence outweighs its prejudicial effect

to that defendant.” Fed. R. Evid. 609(a)(1)(B). In these

situations, the United States bears the burden of showing that

the evidence’s probative value outweighs its prejudicial effect.

See Fed. R. Evid. 609(a) advisory committee’s note to 1990

amendment.

10 Document no. 35.

10 “Rule 609 is premised on ‘the common sense proposition that

one who has transgressed society’s norms by committing a felony

is less likely than most to be deterred from lying under

oath.’” Walden v. Georgia-Pac. Corp.,

, 523 (3d

Cir. 1997) (quoting Cummings v. Malone,

(8th

Cir. 1993)). Hayes’s state convictions, while certainly recent

enough to reflect on his credibility in the general sense

contemplated by Rule 609, are not the type of deception-oriented

crimes that implicate dishonesty in particularly probative way.

Further, they are crimes of violence that could substantially

prejudice a defendant’s case, especially where, as here, the

defendant stands charged with a violent crime. See Gordon v.

United States,

(D.C. Cir. 1967) (“In common

human experience acts of deceit, fraud, cheating, or stealing,

for example, are universally regarded as conduct which reflects

adversely on a man’s honesty and integrity. Acts of violence on

the other hand . . . generally have little or no direct bearing

on honesty and veracity.”). And given that Hayes is currently

incarcerated with the Bureau of Prisons, the jury will

undoubtedly know that he has been convicted of a felony on a

prior occasion, regardless of any impeachment with prior

convictions.

The prosecution has not met its burden of establishing that

the prior conviction impeachment would be more probative than

11 prejudicial. Hayes’s motion in limine to exclude the details of

his prior convictions is GRANTED.

D. Prison telephone call recording

Next, Hayes asks the court to exclude a 15-minute audio

recording of a February 9, 2019 “jailhouse” phone conversation,

during which Hayes purportedly challenges or corrects an

unidentified woman’s understanding of the prison confrontation

at issue here.11 Hayes asserts that the entire recording should

be excluded under Fed. R. Evid. 403 and 901 because it is mostly

unintelligible, and because the woman conversing with him on the

telephone has not been identified by the prosecution. Further,

he asserts that the woman’s statements constitute inadmissible

hearsay and violate the Sixth Amendment’s Confrontation Clause.

Under these circumstances, the court disagrees.

Fed. R. Evid. 403 provides that the court “may exclude

relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative

evidence.” Here, the probative value of the 45-second portion

the United States intends to introduce outweighs any of these

dangers, “even though portions of the recordings are inaudible,”

11 Document no. 39.

12 see United States v. Doyon,

(1st Cir. 1999), and

the United States does not intend to play the entire tape, see

United States v. Lentz,

(4th Cir. 2008) (allowing

government to introduce only one portion of jail call and

denying defendant’s argument that Rule 106 required admission of

entire call, including self-serving exculpatory comments by

defendant).

Circuit precedent holds that the admissibility of a

partially inaudible audio recording – and “whether the inaudible

parts are so substantial as to make the rest more misleading

than helpful” – rests within the discretion of the district

court. United States v. Carbone,

(1st Cir.

1986); see also United States v. Panzardi-Lespier,

(1st Cir. 1990). Having reviewed the recording, the court

finds that the early portion of the tape clearly records Hayes’s

purported admission that at the time of the call he was confined

in “the hole” because he fought with another inmate, as well as

his denial that he was stabbed. These details are corroborated

by other evidence in the case, as were the recorded statements

in Doyon. The fact that portions of the call thereafter may be

inaudible has little or no tendency to prejudice Hayes’s case or

confuse the jury, as Hayes has not argued (and it does not

appear) that these portions are relevant to the prosecution’s

case or Hayes’s defense. As such, the audible portions of the

13 recording remain highly probative relative to any potential

prejudice or confusion.

In addition, the court has given both parties leave to

provide the jury with a transcript to aid them in following the

audio recording, thus minimizing potential for confusion. See

Panzardi-Lespier,

(recognizing that “transcripts

are used to assist the jury in following tape recording

playbacks”); see also United States v. Pion,

(1st

Cir. 1994) (recognizing defendant’s right to introduce own

transcript when parties do not stipulate).12 In his papers and

at oral argument, Hayes maintained that a transcript is

insufficient to aid the jury in following the unintelligible or

indecipherable parts of the audio recording, and that the

prosecution’s proffered transcript of the call’s first minute

contains inaccuracies and could impermissibly bolster the United

States’ theory of the case. To address these concerns, the

court grants Hayes the following accommodation: his counsel can

work with the government to create a stipulated transcript that

more accurately reflects his purported conversation with the

unidentified woman, or if no stipulation can be reached, he can

12Of course, the defendant has no obligation to provide any evidence, or any information, to the jury at trial. So while the court allows him to provide a transcript, it can not and does not order him to do so. U.S. Const. amend. V.

14 submit his own alternative transcript to aid and augment the

jury’s understanding of the audio recording.

To be clear, the sole purpose of the transcript(s) is to

aid the jury’s understanding of the recording. See supra n.12.

As such, the transcript(s) will not be admitted as evidence, see

Fed. R. Evid. 1002 (best evidence rule), and the jury will be

properly instructed that to the extent any transcript differs

from their perception of the recording, the recording controls.

See United States v. Rengifo,

(1st Cir. 1986).

As to the defendant’s authentication-based objection, the

prosecution represented at oral argument that it will properly

authenticate the recording at trial per Rule 901, which requires

that a proponent of an item of evidence “produce evidence

sufficient to support a finding that the item is what the

[United States] claims it is.” Fed. R. Evid. 901. Here, the

prosecution has explained that it will admit the recording

through a Bureau of Prisons employee who will “testify about the

prison’s policy of recording telephone calls, software used to

record calls, the procedures he followed to obtain the recording

of the call, . . . and the accuracy of the copy of the recording

played at trial.” Id.; see also Fed. R. Evid. 1001-03. The BOP

employee will also testify that to use the phone, a prisoner

must enter a specific code unique to him or her, and that

Hayes’s code was entered for the audio recording in question.

15 Hayes’s counsel agreed at oral argument that this foundation is

sufficient to authenticate the recording under Rules 901 and

902.

Finally, the court finds that the unidentified woman’s

statements do not constitute hearsay in this case and thus do

not violate Hayes’s rights under the Confrontation Clause. The

Confrontation Clause provides every person accused of a crime

has “the right to confront a witness against him or her in a

criminal action.” U.S. Const. amend. VI. But here, the

Confrontation Clause is not implicated because the United States

merely intends to introduce the woman’s statements to provide

context for Hayes’s purported part of the conversation and not

to prove their truth. See Fed. R. Evid. 801(c)(2). In this

regard, the use of a non-testifying person’s statements on an

audio recording is well-traveled ground.13 In United States v.

Hicks, for example, the Court of Appeals affirmed a trial

court’s decision to admit a jail call between a defendant and a

non-testifying individual because her statements were “admitted

to provide context for the statements of appellant … [and] did

not implicate the Confrontation Clause.”

(1st Cir.

2009). Likewise, in United States v. Walter, the Court of

13In fact, her statements do not support the U.S. Attorney’s theory of the case, and more closely support the defendant’s version of events.

16 Appeals affirmed the introduction of a non-testifying

informant’s recorded statements because they were offered for

the nonhearsay purpose “to provide context for the admissions of

[defendant].”

(1st Cir. 2006).

The context here is simply that Hayes’s statements were

responses to the words uttered by the woman speaking to him.

Without the context provided by her words, Hayes’s statements

would make little sense to the jury. If requested, the court

will give an appropriate limiting instruction that the woman’s

words may not be considered for their truth. See Fed. R.

Evid. 105. Alternatively, the parties are ordered, if Hayes so

requests, to redact the woman’s statements from the audio

recording and corresponding transcripts.

On this record, the court denies the motion to exclude the

audio recording of the February 9, 2019 phone conversation

without prejudice.

Conclusion

The prosecution’s motion to preclude evidence regarding

specific instances of the victim’s prior conduct14 is GRANTED IN

PART and TAKEN UNDER ADVISEMENT IN PART, as discussed supra.

The prosecution’s motion to preclude alleged hearsay statements15

14 Document no. 24. 15 Document no. 36.

17 is DENIED as to the defendant’s statements on January 30 and

TAKEN UNDER ADVISEMENT as to the defendant’s statements on

February 20. Hayes’s motion to preclude the government from

impeaching him with his prior convictions16 is GRANTED. And

Hayes’s motion to exclude the jailhouse phone conversation17 is

DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: July 25, 2019

cc: Anna Z. Krasinski, AUSA Georgiana L. Konesky, AUSA Jeffrey S. Levin, Esq.

16 Document no. 35. 17 Document no. 39.

18