Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2006

USA v. Tinsley
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4245




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 04-4245


                           UNITED STATES OF AMERICA

                                            v.

                                THEODORE TINSLEY,

                                                        Appellant


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (D.C. Criminal No. 03-cr-00798)
                      District Judge: Honorable Petrese B. Tucker


                                Argued January 31, 2006

           Before: McKEE, VAN ANTWERPEN, and SILER,* Circuit Judges.

                                 (Filed March 27, 2006)

Maureen Kearney Rowley
David L. McColgin
Robert Epstein (Argued)
Defender Association pf Philadelphia
Federal Court Division
Suite 540 West – The Curtis Center
601 Walnut Street
Philadelphia, PA 19106


       *
         Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit,
sitting by designation.
Counsel for Appellant

Patrick L. Meehan
Robert A. Zauzmer
John M. Gallagher (Argued)
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

Counsel for the Government
                                           ____

                                  OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Appellant Theodore Tinsley was convicted by a jury on July 16, 2004, of one count

each of gun possession in furtherance of a drug trafficking crime (count 1), felon in

possession (count 2), and possession of crack cocaine with intent to distribute (count 3). On

October 22, 2004, the District Court sentenced Tinsley to 197 months imprisonment. This

appeal stems first from the District Court’s decision, before trial, to disqualify Tinsley’s

retained counsel on the ground that counsel might be called as a witness to describe having

seen, handled, and discussed a similar gun in the possession of Tinsley’s girlfriend four to

five years prior to the charged offenses. Second, Tinsley appeals the District Court’s

exclusion, as hearsay, of certain testimony by a defense witness regarding threatening phone

calls received by Tinsley, the contents of which he recounted to the witness. We have

jurisdiction pursuant to 18 U.S.C. § 1291, and will affirm.



                                             2
                                              I.

       Because we write solely for the benefit of the parties, we state the facts only as they

pertain to our analysis.

       In the early morning of October 17, 2003, Tinsley was spotted driving by two law

enforcement officers who knew from recent encounters that Tinsley had a suspended license;

they also noticed that his license plate was not illuminated as required by law. After briefly

attempting to elude the officers, Tinsley was pulled over to the side of the road. When

ordered to exit the car, Tinsley refused, became verbally and physically agitated, and

assaulted the officers. During the ensuing struggle, a Tech-9 machine pistol fell from his

waistband onto the street. Eventually the officers and reinforcements succeeded in subduing

Tinsley and placing him in a patrol car, where Tinsley broke a window and bent the door

frame. A search of Tinsley’s clothing revealed about 16-18 grams of crack cocaine. No drug

paraphernalia was found on his person or in his vehicle. The gun was recovered and found

to be fully loaded, with the serial number removed.

       Tinsley was indicted on December 3, 2003, by a federal grand jury on three counts:

Possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c); Felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and

Possession with intent to distribute more than 5 grams of cocaine base (“crack”), in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii). In the District Court for the Eastern District of

Pennsylvania, which had jurisdiction pursuant to 18 U.S.C. § 3231, Tinsley pleaded not



                                              3
guilty to all three counts of the indictment.

       Following an initial appearance, Tinsley’s retained counsel informed both the

Government and the Bureau of Alcohol, Tobacco, and Firearms, that counsel had seen, about

four to five years earlier, a Tech-9 while at Tinsley’s girlfriend’s home. Counsel said he had

handled the pistol and had discussed it with Tinsley’s girlfriend. Following this disclosure,

Tinsley’s counsel refused the Government’s request that he withdraw voluntarily from the

case. The Government then filed a motion to preclude counsel from representing Tinsley,

on the ground that he might be called as a material witness in the case if, for example,

Tinsley claimed the gun had been planted by the police officers during his arrest. The

District Court held a hearing at which it heard argument from both sides, and ultimately

granted the Government’s motion to preclude, stating that “while it [counsel’s potential

testimony] does not go directly to an element of the offense against this defendant, it is

relevant and can be relevant for purposes of proving the case by the government.” Tinsley

was subsequently represented by the Federal Defender’s Association.

       During the first phase of a four-day bifurcated trial, Tinsley presented as a defense to

counts 1 and 3 that he was carrying the gun for self-defense, not in furtherance of a drug

trafficking crime. He presented a witness, Kadedra Holmes, who testified that Tinsley had

been shot at several months prior to his arrest while attempting to break up a fight at a

nightclub. However, the District Court refused, on the grounds of inadmissible hearsay, to

allow Holmes to testify that before his arrest, she was in Tinsley’s presence when he received



                                                4
several phone calls allegedly threatening his life. She did not hear the content of the calls

personally, but Tinsley related the calls to her. The jury subsequently convicted Tinsley of

both counts 1 and 3, and in the second phase of the trial, convicted him of count 2, on the

basis of a stipulated previous felony conviction. On October 22, 2004, the District Court

sentenced Tinsley to 197 months imprisonment, comprising 137 months for counts 1 and 3,

and 60 months to be served consecutively for count 2, and eight years of supervised release.

Tinsley now appeals both the District Court’s pre-trial disqualification of his attorney, and

the exclusion on hearsay grounds of Holmes’s testimony regarding the threatening phone

calls.

                                               II.

         In reviewing a District Court’s decision to disqualify an attorney, “First, we exercise

plenary review to determine whether the district court’s disqualification was arbitrary – ‘the

product of a failure to balance proper considerations of judicial administration against the

right to counsel.’” United States v. Stewart, 

, 120 (3d Cir. 1999) (quoting

United States v. Voigt, 

, 1074 (3d Cir. 1996)). Second, if the decision was not

arbitrary, we then review for abuse of discretion. 

the District Court’s

application of the Federal Rules of Evidence for abuse of discretion. United States v. Saada,

, 220 (3d Cir. 2000).

                                               III.

                              A.    Disqualification of Counsel



                                                5
       In its Motion to Preclude, the Government argued that because Tinsley’s counsel had

previously seen a similar gun in the possession of Tinsley’s girlfriend, counsel might be

called as a material witness to testify to the sighting. For example, Tinsley might claim that

the gun had been planted during his arrest, at which point the Government would seek

Tinsley’s counsel’s testimony. This, the Government argued, would inevitably create a

conflict of interest on the part of Tinsley’s counsel. Tinsley argued in response that the

conflict was only potential, and that the origin of the gun was not a matter at issue in the trial,

therefore his counsel was not a “necessary” witness and should not be disqualified. For the

reasons that follow, we find that the District Court did not err in disqualifying Tinsley’s

counsel on the basis of a potential conflict of interest.

       As stated above, our inquiry is two-tiered. We first review whether the District

Court’s decision was arbitrary. We look for such elements as a reasoned decision and a

developed record. 

. Second, if the decision was not arbitrary, we ask

whether the District Court abused its discretion in disqualifying Tinsley’s counsel. For the

reasons set forth below, the District Court’s decision was neither arbitrary nor an abuse of

discretion.

       Under United States v. Merlino, 

(3d Cir. 2003), we find that the

decision to disqualify Tinsley’s counsel was not arbitrary – “the product of a failure to

balance proper considerations of judicial administration against the right to counsel.’”

(quoting 

). Merlino involved a lawyer who,


                                                6
on behalf of his client, visited a potential government witness in prison, passed messages

suggesting that the witness could return to Philadelphia without danger from the defendant’s

crime organization, discussed the identity of the new crime boss, and attempted to give the

witness money. The District Court in Merlino considered all the evidence the parties wished

to submit, questioned the parties, and heard oral argument before disqualifying the 

. Here, the District Court was presented with a factually-detailed motion

from the Government; the court heard oral argument from both sides; Tinsley’s counsel did

not dispute that he had seen the gun and spoken with Tinsley’s girlfriend about it; and the

court identified the potential – indeed likely – conflict of interest that would arise even if

Tinsley’s counsel was not called as a witness. Similarly, as Tinsley admitted at argument,

there were no disputed facts regarding the earlier incident, and therefore the lack of factual

findings is not surprising.

       All of these factors weigh heavily in favor of finding that the District Court’s decision

was not arbitrary. We are also reassured by the District Court’s detailed questioning of

Tinsley to ensure that he would not be unreasonably adversely-impacted by the need to

obtain new counsel. It is evident from the record that the District Court was concerned

about the defendant’s right to counsel as well as the conflict of interest, and under such

circumstances we will not elevate form over substance and require a District Judge to state




                                               7
explicitly his or her cognizance of a defendant’s Sixth Amendment right to counsel,1 or to

state “I am now balancing the defendant’s right to counsel against considerations of judicial

administration.”2

       We recognize that Merlino is potentially distinguishable because of, for example, the

lack of a written memorandum of decision here, and the fact that the relevant defendant in

Merlino had only one of his two retained lawyers disqualified and was therefore never

deprived of both his counsel of choice. These are small distinctions however, and

nonetheless, we find that Merlino’s rationale easily extends to cover the case at bar.3

       The second step of our inquiry asks whether the District Court’s non-arbitrary

decision to disqualify Tinsley’s counsel was nonetheless an abuse of discretion. “A criminal

defendant’s Sixth Amendment right to counsel of one’s choice is not absolute; ‘where

considerations of judicial administration supervene, the presumption in favor of counsel of

choice is rebutted and the right must give way.’” 

(quoting Voigt,


       1
       We reject Tinsley’s assertion at argument that the District Court was not aware that
Tinsley had a “right to counsel of choice.” We also note that the Government explicitly cited
Merlino – our leading case on the subject of disqualification of counsel of choice and in
general – in its disqualification motion.
       2
        In an analogous context, we have not hesitated to find satisfied the requisite balancing
of probative value and potential prejudicial impact under Fed.R.Evid. 403, even where the
District Court does not explicitly go through a balancing inquiry. See, e.g., Ansell v. Green
Acres Contracting Co., 

(3d Cir. 2003).
       3
        Here, the potential conflict regarding Tinsley’s counsel was apparently known at the
time of Tinsley’s arraignment, and the Federal Defenders Association was actually appointed
to represent him for a period of time. His counsel’s potential disqualification can therefore
hardly be said to have caught Tinsley completely off-guard.

                                               

). Tinsley argues that the District Court’s decision was erroneous because

his counsel was not a “necessary” witness. We have never imposed such a requirement.

Instead, in Merlino we stated that the lawyer could have been appropriately disqualified

because he might be called as a witness, and “disqualification may also be appropriate where

it is based solely on a lawyer’s personal knowledge of events likely to be presented at trial,

even if the lawyer is unlikely to be called as a witness.” 

(emphasis added). This

case is no different. The District Court correctly found that a conflict was present because

Tinsley’s counsel might be called as a witness if it became necessary to prove Tinsley’s

previous possession of the gun. If he remained in the case, we do not see how Tinsley’s

counsel could ethically decide whether or not to strategically present a planted-evidence

defense. See 

(noting that counsel was put in a “compromised

position” given that the defendant “employed a ‘mob-denial’ defense at trial”); 

(“[T]he district court could not accept [the defendant’s] assurances that he would

not pursue an alternate strategy at trial.”). We find that the District Court did not abuse its

discretion in disqualifying Tinsley’s counsel based on this conflict.

                                  B.   Hearsay Evidence

       Tinsley next challenges the District Court’s exclusion of Kadedra Holmes’s testimony

regarding what Tinsley told her about the allegedly threatening phone calls he received

before his arrest. Tinsley alleges that this testimony was admissible as non-hearsay evidence

as it showed Tinsley’s state of mind (fear), and was not being used for the truth of the matter


                                              9
(that Tinsley was in fact being threatened). The District Court excluded this testimony as

inadmissible hearsay. We find that the District Court did not abuse its discretion.

       Tinsley offers on appeal two justifications for the testimony – state of mind, under

Fed.R.Evid. 803(3), and excited utterance, under Fed.R.Evid. 803(2). While we conclude

that Holmes’s testimony might ultimately have been admissible under one of these

exceptions, the decision to exclude was well within the District Court’s discretion given the

minimal proffer made at the time. Fed.R.Evid. 803(3) permits “statement[s] of the

declarant’s then existing state of mind, emotion, sensation . . . but not including a statement

of memory or belief to prove the fact remembered or believed . . . .” Before the District

Court, however, Tinsley argued that Holmes’s testimony went “to [Tinsley’s] state of mind

in terms of what he reasonably believed.” (emphasis added). The proffer also did not

include any indication that Holmes would testify that Tinsley said, “I’m afraid” – an actual

statement of his state of mind. There was no abuse of discretion in excluding evidence

based on this proffer.

       Tinsley also argues that Holmes’s testimony was admissible under Fed.R.Evid.

802(2), which permits “statement[s] relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.” Before the

District Court, Tinsley argued only that “even if, as counsel suggests, there were a hearsay

issue here, this is clearly an excited utterance. But that is . . . not really what I need to offer

it for. Just for his state of mind . . . .” Whether or not Holmes’s testimony ultimately would


                                                10
be admissible under the excited utterance exception, we cannot conclude that the District

Court abused its discretion in rejecting such a limited proffer that provided no foundation

for applying this hearsay exception. We will therefore affirm the District Court’s refusal to

admit Holmes’s testimony on this point.

                                             IV.

       For the foregoing reasons, we conclude that the District Court properly disqualified

Tinsley’s retained counsel and excluded Kadedra Holmes’s hearsay testimony regarding

threatening phone calls. We have considered all other arguments made by the parties on

appeal, and conclude that no further discussion is necessary.

United States v. Tinsley, 04-4245

McKee J., Dissenting

       Although I am compelled to dissent, I note at the outset that there is much to

commend the majority’s Sixth Amendment analysis. Indeed, if we had the luxury of writing

on the proverbial “blank slate,” I would have no hesitation joining it. For reasons that are

not at all apparent on this record, Tinsley’s retained counsel told the prosecutor that 4 or 5

years earlier, he (counsel) had seen a gun similar to the one in question here, in the home of

Tinsley’s girlfriend. That disclosure created the possibility that counsel would be called to

testify against his own client if Tinsley employed a trial strategy of arguing that police

planted the gun on him during his arrest. The District Court was understandably concerned

that the government might call defense counsel as a witness against his own client in the



                                             11
middle of a jury trial. Accordingly, the court granted the government’s motion to remove

counsel, and Tinsley proceeded with an attorney who was not compromised by a potential

conflict.

       Nevertheless, because this record does not meet the requirements set forth in United

States v. Voigt, 

(3d Cir. 1996), and because I am also troubled by the majority’s

resolution of Tinsley’s hearsay claim, I must respectfully dissent.

                           I. Tinsley’s Sixth Amendment Claim.

       The right to counsel guaranteed by the Sixth Amendment includes the right to counsel

of choice. Powell v. Alabama, 

, 53 (1932). However, the right to counsel of

choice must give way when it is outweighed by considerations of judicial administration.

. In Voigt we explained that cases involving the Sixth Amendment

right to counsel of choice “can . . . be divided into two categories.” 

category

involves “‘arbitrary’ denials of the right to counsel.” 

v. Diesslin, 

, 607 (3d Cir. 1989)). The second category “concerns ‘a non arbitrary, but erroneous

denial’” of the right to counsel. 

(citing 

n.4).




       The arbitrariness comprising the first category of cases does not suggest “arbitrary”

in the usual sense of an impulsive or whimsical act. Rather, a denial of the right to counsel

is “arbitrary” when it results from “a failure to balance proper considerations of judicial

administration against the right to counsel.” 

. In Voigt, we also


                                              12
explained that, although the decision to remove counsel of choice need not be based upon

a hearing or supported by factual findings formally stated on the record, it must nevertheless

be supported by a “reasoned determination on the basis of a fully prepared record.” Id.

(quoting 

n.4.). In fact, in Voigt, we upheld the court’s removal of

defense counsel even though the court did not conduct an evidentiary hearing. However,

there, “the court had before it submissions of the various parties, including sworn affidavits

and documentary evidence attached as 

. We concluded that

“record was fairly substantial.” 

several co-defendants were indicted for conspiracy to commit wire fraud

and related offenses. The government alleged that certain trusts had been created as part of

a scheme to defraud investors, launder funds, and evade taxes. Binns, one of Voigt’s defense

attorneys, had previously represented the trusts and a codefendant in some capacity, and one

of Voigt’s codefendants filed a motion to disqualify him from defending Voigt at trial. The

motion was supported with an eleven page letter with attached exhibits including

correspondence between Binns and the United States Attorney regarding Binns’

representation, a memorandum and notes by the codefendant regarding litigation strategies

that mentioned Binns, and communications with investors in the trust directing them to

contact Binns or deposit funds into an escrow account. 

with “ninety-six

pages of documentary support” in opposition to the motion. His reply included affidavits,

grand jury transcripts, correspondence, and FBI reports. 

upon that voluminous record and the uncontested evidence before the District

Court, we held that the District Court’s removal of Binns was not arbitrary even though the

court did not conduct a hearing before granting the motion. In explaining its reasons for

removing Binns, the District Court stated:

              We have here a number of very serious issues. As a matter of
              fact, I would characterize it really as a foaming caldron of
              representation issues here. Such that I am convinced that it
              would be foolhardy for me to go forward and inject potential
              error and possible violation of the rights of codefendants in what
              purports to be a lengthy and complicated criminal case right at
              its inception before we have even heard any motions.

                                            ***
                Mr. Binns has had substantial involvement in pre-indictment
              events concerning the case. . . .We have a letter that he
              represented [a codefendant] for a limited purpose. We have
              [the codefendant], according to counsel's submission, saying that
              he thought Mr. Binns was going to represent him and later
              saying that he didn't. . . .

              And I am convinced, based upon the precedent, that it would be
              very foolish for me to proceed and to allow [Binns to represent
              Voigt].... [T]o allow him to come into court and cross-examine
              other persons based upon his personal knowledge, possibly to
              examine persons . . . he has represented beforehand, whether
              directly or otherwise, is exactly the concern that the cases have
              raised.

After considering this thorough explanation based upon the court’s review of

the evidence there, we held that “the record was more than sufficient to enable the District

Court to make a reasoned and well informed decision. Formal findings of fact [were] not

required.” 

The situation here is quite different.

                                              14
       My colleagues state that the “District Court [here] was presented with a factually-

detailed motion from the government . . .”. Maj. Opn.. at 7. That factually detailed motion

consisted solely of the prosecutor informing the District Court that defense counsel had

informed the prosecutor and an ATF agent that defense counsel had seen a similar weapon

in the defendant’s girlfriend’s possession 4 or 5 years earlier. App. at 777-78. That is hardly

a “factually detailed motion.” I realize, of course, that defense counsel did not dispute that

representation, but that does not mean that the motion was “factually detailed” or that the

record was fully developed. For example, there was no exploration of whether the girlfriend

was available to testify about the gun, and the court never inquired into whether the

government and defendant would stipulate to the fact that the girlfriend possessed a similar

weapon in the event that testimony became necessary. Rather, the District Court’s entire

explanation of the Sixth Amendment ruling is as follows:

               I’m inclined to agree with the government on this motion
               because while it does not quote directly to an element of the
               offense against this defendant, it is relevant and can be relevant
               for purposes of proving the case by the government. So that I
               will grant the government’s motion in this matter, and remove
               counsel as counsel for the defendant.


App. at 786.

       Thus, the District Court removed defense counsel because he had “relevant”

testimony. Absent any inquiry into alternative ways of producing the same evidence in the




                                              15
event it became relevant, the record simply does not support removing defense counsel.4

       It is, of course, possible that even if a stipulation had been reached, or the girlfriend

was available, the District Court could still have concluded that the balance tipped in favor

of removing defense counsel. However, in that event, the record would at least have been

more complete and we could then have reviewed the court’s balancing for an abuse of

discretion. Since this record does not reflect any balancing, there was a per se violation of

Tinsley’s Sixth Amendment right to counsel. As we explained in Voigt, “to be nonarbitrary,

. . . the District Court actually must make findings based on evidence in the record and weigh

these findings against the right to 

.               Given this absence of

balancing, we must reverse because the resulting arbitrary denial of counsel is not amenable

to a harmless error analysis. See 

(stating that the Sixth Amendment

right to choice of counsel is “the one area [where] our . . . jurisprudence indicates” that a

harmless error inquiry “is singularly inappropriate.”).

       Moreover, I do not think our inquiry here is advanced by the analogy the majority

seeks to draw to the balancing that is required under Fed. R. Evid. 403. My colleagues note



       4
         The majority notes that disqualification of an attorney has been upheld where the attorney
“might be called as a witness,” Maj. Opn. at 9 (emphasis in original). I agree that it is the potential
of being called as an adverse witness rather than the certainty that raises concerns about the
administration of justice. Nevertheless, I am troubled because, based upon uncontradicted
representations at oral argument, it appears that the government never listed Tinsley’s attorney as
a “potential” witness before the District Court. That unexplained omission is troubling given the
prosecution’s reliance on counsel’s potential testimony as grounds from disqualifying him. I find
that contradiction difficult to understand unless the advocacy in the District Court included a bit of
adversarial “gotchya.”

                                                  16
that “we have not hesitated to find satisfied the requisite balancing of probative value and

potential prejudicial impact under Fed. R. Evid. 403, even where the District Court does not

explicitly go though a balancing inquiry.” Maj. Opn. at 7 n. 2 (citing Ansell v. Green Acres

Contracting Company, 

(3d Cir. 2003). Here, we are concerned with the denial

of a fundamental right, not the interplay of two conflicting rules of evidence, and our Rule

403 jurisprudence is therefore of little assistance.

       The majority also rests its Sixth Amendment analysis on United States v. Merlino, 

(3d Cir. 2003), and Tinsley cites to it as well as to Voigt. However, Merlino is a

very different case. Merlino did not involve an “arbitrary” removal of counsel at all. Rather,

in Merlino, “[t]he question [was] whether the District Court’s ultimate conclusion to

disqualify [defense counsel] constituted an abuse of 

. The case

is therefore not as helpful as the majority suggests because the absence of the required

balancing here raises the issue of an arbitrary denial the right to counsel, not an abuse of

discretion. In Merlino, we explicitly noted that the court “engaged in the balancing required

by the Sixth Amendment . . . ”. 

quite a stretch to find any such balancing on this

record.

       In addition, defense counsel’s conduct in Merlino was nothing short of outrageous,

and the case is therefore less analogous to the circumstances here than the majority’s analysis

suggests. In Merlino, defense counsel visited a prison where he spoke with an inmate who

was to testify against a leader of an organized crime faction. The discussion the attorney had



                                              17
with that witness was tantamount to an obstruction of justice. The discussion could also have

been interpreted as either a subtle threat, or an attempt to lull the witness into lowering his

guard so that he might more easily become a target for mob ordered violence. The

government also argued that the defense attorney had “smuggled” a five page letter from the

mob boss who was about to stand trial to the potential 

. Under the

circumstances, we held that counsel’s visit to the witness “was reason enough for his

disqualification.” 

. Nothing we said in Merlino can enhance this record or create

the required balancing where there was none.

       Given the state of this record and the absence of the balancing required under Voigt,

I believe the District Court’s removal of defense counsel was arbitrary.

                             II. Tinsley’s Hearsay Argument

       Tinsley also argues that the District Court erred in excluding the testimony of Kadedra

Holmes. He claims that evidence was admissible either under the Rule 803(3) state-of-mind

exception to the hearsay rule, or as an excited utterance under Fed. R. Evid. 803(2). The

majority rejects his claim, not because Tinsley is wrong, but because of the “minimal proffer

[he] made at the time.” Maj. Opn. at 10. Although I concede that it is a “close call,” I

disagree with the majority’s conclusion that the proffer precludes relief. I also disagree with

the majority’s statement of the applicable standard of review.

       When offering Holmes as a witness, defense counsel stated that “she was present with

Mr. Tinsley when he received threatening phone calls on his cell phone.” App. at 615. In



                                              18
arguing for the admission of that evidence, counsel stated that he was offering it:

              one, for a nonhearsay purpose, and that is his state of mind.
              Whether these particular people were really going to kill him or
              not, I’m not offering it for the truth of the matter asserted. . .
              But this is classic state of mind evidence. It goes to his state of
              mind in terms of what he reasonably believed, and it gives us an
              alternative explanation, alternate from the furtherance of the
              drug traffic offense explanation for possession a firearm. So
              that’s the purpose of it, the nonhearsay purpose for state of
              mind.
                  And even if, as counsel suggests, there were a hearsay issue
              here, this is clearly an excited utterance. But that is not really
              what I need to offer it for. Just for his state of mind is because
              it goes to the intent which is what the inference either way is.
              (sic). Whether its for self protection or whatever it’s for a
              furtherance of drug trafficking, it’s an intent issue, a state of
              mind issue. This is classic state of mind evidence.


App. at 615-16.

       A short while later, after Holmes took the witness stand, defense counsel asked for

a sidebar conference during which he again asked that Holmes be permitted to testify about

the threatening phone calls. Counsel again argued that Holmes was present when phone calls

were made to the defendant’s cell phone. Defense counsel argued that Tinsley told Holmes

that “the threats - - that I have just been threatened with my life, so she is aware of it. It

clearly goes to state of mind, his state of mind, and is clearly relevant. Its not being offered

for hearsay purposes, and I would renew my request to offer that evidence. It’s classic non-

hearsay purpose is state of mind.” App. at 623.

       My colleague’s rejection of that argument is based upon an ultra-technical application



                                              19
of the rules of evidence. They explain: “[t]he proffer . . did not include any indication that

Holmes would testify that Tinsley said, ‘I’m afraid’ – an actual statement of his state of mind.

There was no abuse of discretion in excluding evidence based on this proffer.” Maj. Opn.

at 10. Yet, in rejecting Tinsley’s Sixth Amendment argument based upon the District Court’s

failure to articulate the required balance, the majority proclaims it “will not elevate form

over substance and require a District Judge to state explicitly his or her cognizance of a

defendant’s Sixth Amendment right to counsel[.]”5 Maj. Opn. at 7-8. However, we are

willing to elevate form over substance in denying Tinsley relief by relying upon a very

technical interpretation of Tinsley’s proffer and thereby upholding a decision to deny

admissible testimony.

       Tinsley was clearly attempting to have Holmes testify that Tinsley had been

threatened. Evidence of the purported threats was not hearsay. See United States v. Saada,

(3d Cir. 2000). The testimony was not offered to establish the truth of any

threat of harm, but to establish the theat was made, and therefore support Tinsley’s claim

that he had the gun for self defense unrelated to any involvement with illegal drugs. In

Saada, we stated: “[N]ot every extrajudicial statement constitutes hearsay. Rather, [i]f the

significance of an offered statement lies soley in the fact that it was made, no issue is raised

as to the truth of the matter asserted, and the statement is not hearsay.” 

n.8

(citation and internal quotations omitted).

       5
        Of course, it is not the court’s knowledge of Tinsley’s right to counsel that is at issue, but
whether the court balanced that right on the record.

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       I realize that defense counsel did not argue that the purported threats amounted to a

“verbal act,” and to that extent I agree his proffer was lacking. However, the District Court’s

ruling was not based upon that technicality, nor the one relied upon by my colleagues.

Rather, in explaining the rejection of that testimony, the court stated: “I’m not going to

permit it because the government has absolutely no way of testing the veracity. And while

you may be entering it for a state of mind, it really does rely upon the truth of the matter of

what was said, and I’m not going to permit it.” App. at 623-624.

       However, admissibility of evidence does not turn on the ease with which the party

opponent can refute its veracity. Testimony that is admissible under the Rules of Evidence

is not transformed into inadmissible testimony merely because the party opponent has only

cross-examination to attack its accuracy. Nor is nonhearsay transformed into hearsay merely

because jurors may infer the truth of matters that are not offered for the truth of the assertion.

Were that the rule, there would be precious few, if any, exceptions to the hearsay rule as the

same problem exists with almost any excited utterance or state of mind testimony. In fact,

the problem is endemic in the nature of hearsay and its exceptions and is present whenever

a court instructs a jury not to accept an out of court statement for the truth of the matter but

for the limited purpose of the applicable exception to the hearsay rule. Here, the court’s

concern that the jury would misuse the evidence should have been addressed by giving a

limiting instruction, not by preventing the jury from hearing the testimony.

       The majority reviews this claim of error for an abuse of discretion. However, the



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District Court’s rejection of Holmes’ testimony was based upon an erroneous interpretation

of the Rules of Evidence. Our review of the District Court’s interpretation of the Federal

Rules of Evidence is plenary; we do not review legal error for an abuse of discretion. See

States v. Brown, 

, 458 (3d Cir. 2001). The latter is applied to evidentiary rulings

“premised on a permissible view of the law.” United States v. Pelullo, 

, 199

(3d. Cir. 1992).

       Tinsley’s defense was, in part, that he possessed the gun because he had received

threats unrelated to any involvement with drugs. The jury certainly may have rejected that

claim even if it had heard Holmes’ testify about the alleged threats, but Tinsley was entitled

to rely upon that testimony in placing his defense before the jury. Accordingly, I am not

comfortable relying upon an argument that precluding Holmes’ testimony was harmless error.

See, e.g., Government of the Virgin Islands v. Knight, 

, 630 (3d Cir. 1993)

(District Court’s improper exclusion of evidence is not harmless error when it is highly

probable that the error contributed to the jury’s judgment of conviction). The jury had to

decide whether the gun was possessed in connection with Tinsley’s drug distribution or for

self-defense unrelated to that criminal activity.

       The jury did hear evidence that he tried to break up a barroom fight several months

before his arrest. That evidence, by itself, could have raised a reasonable doubt about why

Tinsley had the gun he was arrested with. However, Holmes’ testimony about telephoned

threats may well have given the testimony about the barroom fight an added dimension that



                                              22
could have raised a reasonable doubt about his motive for having the gun. Since the jury was

not allowed to hear that testimony, I must respectfully disagree with the analysis of my

colleagues.




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