105 F.

3d 1
46 Fed. R. Evid. Serv. 307

UNITED STATES, Appellee,

v.
Dwayne YOUNG, Defendant, Appellant.
No. 95-2178.

United States Court of Appeals,

First Circuit.
Heard Oct. 10, 1996.
Decided Jan. 23, 1997.

Karl R.D. Suchecki with whom Jennifer Petersen and Petersen &
Suchecki were on brief, Boston, for appellant.
Andrea Nervi Ward, Assistant United States Attorney, with whom Donald
K. Stern, United States Attorney, was on brief, for appellee.
Before CYR, BOUDIN and STAHL, Circuit Judges.
STAHL, Circuit Judge.

In May 1995, a jury 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 socalled "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
2

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
by himself while the other two departed together in another direction.
3

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 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
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.
denied, --- U.S. ----, 117 S.Ct. 479, 136 L.Ed.2d 374 (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, --U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (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, --- U.S. at ----,
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 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,
111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (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, 111 S.Ct. at
2386-87. 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, 111
S.Ct. at 2388-89; 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
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, 111 S.Ct.
1547, 113 L.Ed.2d 690 (1991)). We reiterate that conclusion with respect to the
officers' conduct toward Young prior to Officer Twitchell's lunge.

10

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, 111 S.Ct. 2861, 115 L.Ed.2d 1027
(1991). An investigative stop, also known as a Terry stop, see Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), occurs when a police
officer, acting on reasonable and articulable suspicion of 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).

11

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.

12

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 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, 88 S.Ct. at 1879-80). 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.

13

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 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.

14

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.

15

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 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.

16

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, 104 S.Ct. 3138, 3151-52, 82
L.Ed.2d 317 (1984)).

17

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.").

18

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, 104 S.Ct. at 3151). 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 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, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987).
B. Admission of the Turret Tape
19

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

20

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, --U.S. ----, 116 S.Ct. 909, 133 L.Ed.2d 841 (1996). Rule 801(d)(1)(B) provides in
relevant part:

(d) Statements which are not hearsay. A statement is not hearsay if-21
22 Prior statement by witness. The declarant testifies at the trial or hearing and is
(1)
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 ...
23

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 clearly
erroneous. United States v. Piva, 870 F.2d 753, 758 (1st Cir.1989).

24

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.

25

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.

26

Despite defense counsel's insistence that she did not intend to imply fabrication,
the district judge correctly 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.

27

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

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.
28

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.

29

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 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

30

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 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.

31

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.
32

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 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.

33

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, 112 S.Ct. 954, 117 L.Ed.2d 122 (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.

34

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 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
35

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 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).

36

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 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, --- U.S. ----,
117 S.Ct. 681, 136 L.Ed.2d 607 (1997) (quoting United States v. Montas, 41
F.3d 775, 783 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1986, 131
L.Ed.2d 873 (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.

37

Affirmed.

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 a turret
tower at the Boston Police headquarters

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 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
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

With respect to the Turret tape, Young did not raise an argument based on
Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed.2d 574 (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 ----, 115 S.Ct. 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

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, 513 U.S. 150, ----, 115 S.Ct. 696,
700, 130 L.Ed.2d 574 (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

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 outof-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