United States v. Gabriel Guerrero, 803 F.2d 783, 3rd Cir. (1986)
United States v. Gabriel Guerrero, 803 F.2d 783, 3rd Cir. (1986)
2d 783
21 Fed. R. Evid. Serv. 1278
I.
2
Gabriel Guerrero was convicted in the United States District Court for the
District of New Jersey on November 7, 1985, of conspiracy to distribute and to
possess with intent to distribute cocaine, and the use of a telephone to facilitate
the conspiracy. He was sentenced to 14 years imprisonment.
Co-conspirator Cabrera, on the other hand, testified that Guerrero had sought
through threats to inhibit or deter his cooperation with the government. The
alleged threats occurred while Guerrero, Cabrera and Sanclemente were all
incarcerated at the Metropolitan Correctional Center in New York City. Both
Sanclemente and Cabrera had pleaded guilty to participation in the conspiracy
and had been sentenced. Guerrero had subsequently arrived at the center for
detention pending trial. Under a detention order that had been entered by the
district court, Guerrero was to be held in an area separate from persons, such as
Cabrera and Sanclemente, who were serving sentences.
Cabrera testified that, despite the detention order, on October 6, 1985, Guerrero
entered Cabrera's cell and proceeded to discuss the upcoming trial. In the
course of their conversation, Guerrero allegedly counseled Cabrera to refuse to
testify against him. When Cabrera replied that he knew of others who would
testify even if he did not, Guerrero allegedly responded that he would "take
care" of these other witnesses, and remarked that he knew where Cabrera's
family was living. Cabrera testified that, although the whole exchange had at
first seemed casual and friendly, it later occurred to him that Guerrero's words
were menacing. Cabrera claims that the next day he reported Guerrero's threats
to the U.S. Attorney.
The trial judge, the Honorable John W. Bissell, properly considered the
admissibility of this "threat evidence" at a hearing outside the presence of the
jury. Judge Bissell first considered whether the encounter Cabrera described
was likely to have taken place, and concluded that the alleged meeting was not
so incredible as to require rejection of the proffered testimony out of hand under
Federal Rule of Evidence 403.
Holding that the proffered "threat evidence" did not constitute hearsay because
it was a statement of a party, admissible pursuant to Rule 801(d)(2)(A), Judge
Bissell then considered whether Rule 403 required exclusion of Cabrera's
testimony on the grounds that "its probative value is substantially outweighed
Judge Bissell held that Cabrera's testimony "certainly" had probative value, and
was not outweighed by the considerations listed in Rule 403. He therefore
allowed Cabrera's testimony concerning Guerrero's alleged threat to be heard
before the jury. Guerrero was convicted, and now appeals.
II.
9
10
Rule 403 calls for "balancing the probative value of and need for the evidence
against the harm likely to result from its admission." Advisory Committee
Notes, Fed.R.Evid. 403. Like any balancing test, the Rule 403 standard is
inexact, requiring sensitivity on the part of the trial court to the subtleties of the
particular situation, and considerable deference on the part of the reviewing
court to the hands-on judgment of the trial judge. Thus, a trial judge is given
broad discretion in weighing the probative value of evidence against its
potential prejudicial effect. United States v. Higgins, 458 F.2d 461 (3d
Cir.1972). A trial judge's ruling under Rule 403 may be disturbed only when
the judge has clearly abused his discretion. United States v. Clifford, 704 F.2d
86 (3d Cir.1983).
11
The vagueness of the balancing standard has led to some confusion in its
application to threat evidence, however. We take this occasion to set out briefly
the factors to be considered by a trial court in determining the outcome of that
balance.
12
The Advisory Committee Notes refer to balancing the probative value of and
need for the evidence. Advisory Committee Notes, Fed.R.Evid. 403 (emphasis
added). We believe that the "need for the evidence" in this context does not
mean that the prosecution "needs" the evidence because it simply has a weak
case. In fact, it is precisely when the prosecution has little other evidence with
which to gain a conviction that resort to inflamatory evidence might be most
tempting, and when its use would be most prejudicial. Cf. United States v.
Cook, 538 F.2d 1000 (3d Cir.1976). Rather, we believe that factors tending to
establish the "need for the evidence" include the importance and centrality to
the ultimate issue in the case of the fact sought to be proved by the threat
evidence, and the availability of other evidence to establish the fact sought to
be proven by use of the threat evidence. See, e.g., United States v. Qamar, 671
F.2d 732, 736 (2d Cir.1982) (since "the potential prejudice from death threats
may be great ... the government must have an important purpose for the
evidence in order to satisfy the rule 403 balancing test"); C. Wright & Graham,
Federal Practice & Procedure Sec. 5214 ("The prejudice to an opponent can be
said to be 'unfair' when the proponent of the evidence could prove the fact by
other, non-prejudicial evidence.").
14
15
There is, of course, no precise value that can be assigned to any of these factors.
The trial judge should, however, consider all of these elements in reaching a
determination whether the harm likely to result from the proffered testimony
outweighs the probative value of the testimony and the "need" for its
introduction.
16
In the case at hand, we cannot find that the trial judge abused his discretion in
admitting the threat evidence. On the basis of a full hearing outside the jury, the
court determined that there were sufficient indicia of the truthfulness of the
account to merit its introduction. The court could have found both sufficient
corroboration and significance, inasmuch as Sanclemente refused to testify
against Guerrero despite his previous agreement and that Sanclemente's
daughter altered her story so as not to implicate Guerrero. These facts would be
wholly consistent with the content of the conversation alleged by Cabrera, and
are of sufficient import to the case so as to militate in favor of the testimony's
introduction. Cf. Qamar, 671 F.2d at 737 (threat evidence admitted because
explanatory of why key witness testified nearly inaudibly, thus helping the jury
to assess that witness's credibility).
17
18
19
On the basis of this record, then, we cannot say that the trial court abused its
discretion in permitting the threat evidence to be introduced, with an
appropriate limiting instruction.
III.
20