USCA1 Opinion

December 23, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________________
No. 92-1731
KENT A. SIEGFRIEDT,
Petitioner, Appellant,
v.
MICHAEL FAIR,
Respondent, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
_________________________
Before
Selya, Cyr and Boudin, Circuit Judges.
______________
_________________________

Brownlow M. Speer, with whom Committee for Public Counsel

__________________
_____________________________
Services was on brief, for appellant.
________

Pamela L. Hunt, Assistant Attorney General, with whom Scott

______________
_____
Harshbarger, Attorney General, was on brief, for appellee.
___________
_________________________

_________________________

SELYA,
SELYA,
Siegfriedt
States

seeks appellate

District

dismissing
2241-2254
the

Circuit Judge.
Circuit Judge.
______________

Court

of

originally

for

(1988).

an

The issue
We

unavailable

adduced at

pseudonym.

order

District
relief.

of the

of

witness's

See
___

no

is nominal in

the admission at

testimony,

hearing, violated

rights because the

Finding

United

28 U.S.C.

tape-recorded

probable cause

Kent A.

Massachusetts

presented on appeal

must determine whether

defendant's constitutional
under

the

of an

his application for habeas

classic sense.

trial

review

Petitioner-appellant

the

witness testified

constitutional shortfall,

we

affirm.
I.
I.
__
Background
Background
__________
Because the Massachusetts Supreme Judicial

Court (SJC)

has painstakingly traced the lay of the land, see Commonwealth v.

___ ____________
Siegfriedt, 402 Mass.
__________
pleonastic

424, 522

to recount

N.E.2d 970 (1988),

the facts

in great

detail.

it would

be

We provide

instead only the bare minimum necessary to place the petitioner's

appeal into workable perspective.
Siegfriedt
cause

hearing,

an

maintained under oath

was charged
individual

with arson.
known

as

At

the probable

Christopher

Martel

that Siegfriedt forewarned him of the fire

and accurately predicted its approximate time of outbreak.

Martel withstood cross-examination

at the hands of

After

petitioner's

counsel, the court found probable guilt.

By the

time petitioner's
2

case was reached

for trial,

Martel's whereabouts were a mystery.

locate

A diligent search failed to

him but revealed a previously unknown fact:

although the

witness had gone by the name of Christopher Martel, his true name
was

Albert Ciccarelli,

Jr.

The

presiding judge

nevertheless

admitted Martel/Ciccarelli's

tape-recorded testimony, originally

delivered

cause

at

the

probable

petitioner's trial.1
to

Thereafter,

hearing,

the judge allowed

impeach the declarant's credibility.

called two witnesses,

into

evidence

at

petitioner

To that end, petitioner

including Martel/Ciccarelli's brother, who

testified anent the declarant's parlous reputation for veracity.

The jury found Siegfriedt guilty.
conviction.

The SJC affirmed the

Siegfriedt then sought habeas redress.

district court

spurned his application but

of probable cause under 28 U.S.C.

2253.

The federal

issued a certificate
This appeal ensued.

II.
II.
___
Standard of Review
Standard of Review
__________________
Petitioner
unsuccessfully

contends

below,

that

here,

his

as

he

constitutional

contended
rights

abridged when the state court admitted Martel/Ciccarelli's

recorded testimony into evidence.
question

of

law

and

fact.

were

prior

This contention evokes a mixed

Under

the presently

prevailing

standard, "mixed" constitutional questions are subject to plenary

review

in federal habeas

975 F.2d 931, 934

proceedings.

(1st Cir. 1992); see

___

See
___

Chakouian v. Moran,
_________
_____

also Miranda v.
____ _______

Cooper,
______

____________________

1Siegfriedt's first trial resulted in a hung jury. We refer

here, and below, only to the second trial, at which petitioner
was found guilty.
3

967

F.2d 392,

district

401

court's

(10th Cir.)
decision

(affording

concerning

de novo
__ ____

adequacy

review
of

to

cross-

examination in state criminal case), cert. denied, 113 S. Ct. 347

_____ ______
(1992).

Hence,

we

scrutinize

the

denial

of

petitioner's

application for habeas corpus without special deference either to

the district

court or to

raised by this appeal.

shows

"a

the central issue

Withal, we remain "bound by

court's interpretation of
record

the state courts on

the [state]

[its] evidentiary law" so long

sufficient

factual

predicate

as the

rationally

to

support" that court's categorization of the contested evidentiary

proffer.
1987)

Puleio
______

v. Vose, 830
____

(citations and

internal

F.2d 1197,

1204, 1207 (1st

quotation marks

denied, 485 U.S. 990 (1988).

______
III.
III.

Cir.

omitted), cert.
_____

____
Analysis
Analysis
________
A
A
_
The
the
U.S.

Confrontation Clause ensures

right "to

be confronted

Const. amend.

VI.

with the

400, 403 (1965).

under

which

witnesses against

This guarantee

through the Fourteenth Amendment.

a criminal defendant

applies to

the

While the guarantee restricts the circumstances

a court

keen

necessarily
Bourjaily
_________

the States

See Pointer v. Texas, 380 U.S.

___ _______
_____

may

admit the

statements

declarants into evidence, the restriction is not

since

him."

"societal

tempers

the

interest
sweep

of

v. United States, 483

______________

in
the

of unavailable

an absolute bar

accurate

factfinding"

Confrontation

U.S. 171,

182 (1987).

Clause.

Thus,

hearsay
exclusion
evidence

evidence
if the
"bears

from

an

unavailable

proponent can
adequate

declarant

demonstrate that

indicia

may

survive

the proffered

of reliability."

Ohio
____

v.

Roberts,
_______

448

omitted).

U.S.

56,

66

(1980)

(internal

quotation

marks

Such indicia can be established either by showing that

the evidence

"falls within a firmly rooted hearsay exception" or

by showing that the evidence possesses "particularized guarantees

of trustworthiness."

Id.; accord
___ ______

Idaho v. Wright,
_____
______

110 S.

Ct.

3139, 3147 (1990) (collecting cases).

Former
within

testimony

recognized

unavailable

and

the

in

hearsay
party

the

same case

exception
resisting

if
the

generally
the

comes

declarant

proffer

"complete and adequate opportunity to cross-examine."

has had

is

California
__________

v.

Green, 399 U.S. 149, 165-66 (1970) (quoting Pointer, 380 U.S.
_____
_______

at

407); see also Mancusi

___ ____ _______

United States
______________

v. Zannino,
_______

v. Stubbs, 408
______
895 F.2d

1,

U.S. 204, 216 (1972);

5-6 (1st

Cir.), cert.
_____

denied, 494 U.S. 1082 (1990); cf. Fed. R. Evid. 804(b)(1).

______
___
the
same
was

parties agree that the

tape recording was

case and comprised the

prior testimony of

genuinely unavailable at the time of trial.2

however,

about

the

adequacy

of

the

Here,

generated in the

a declarant who

They disagree,

opportunity

for

cross-

____________________

2The Court recently cast doubt upon the admissibility of

prior testimony in criminal cases absent a concrete showing of
the declarant's unavailability.
See White v. Illinois, 112 S.
___ _____
________
Ct. 736, 743 (1992) (suggesting, in dictum, that a showing of
declarant's unavailability might be necessary to trigger the
prior testimony exception to the hearsay rule because of the
constitutional "preference for live testimony").
Given the

witness's acknowledged unavailability in this case,

ponder the import of the White dictum.
_____

we need not

examination.
The petitioner claims
testified under

that, because

an adopted name

at the probable

the opportunity for cross-examination

of law.

This claim derives from the Supreme

drug-trafficking case
When defense

and address,

objections.
In

the

the

There, an informant in a

the

an assumed name.

to ascertain the

trial judge

The Supreme

Court's view,

Court's opinion in

testified at trial under

counsel attempted

cause hearing,

was inadequate as a matter

Smith v. Illinois, 390 U.S. 129 (1968).

_____
________

name

Martel/Ciccarelli

sustained the

Court vacated the

trial

witness's true

prosecutor's

ensuing conviction.

judge's ruling

impermissibly

interfered with the defendant's right to confrontation because it

foreclosed "the opportunity
setting and put .

. . his

to place the

witness in his

credibility to a test."

proper

Id. at
___

132

(citation and quotation marks omitted).

Petitioner interprets Smith
_____

as spawning a

bright-line

rule

rule

which mandates

that,

whatever nuances

supplied by the surrounding circumstances, testimony

an

apocryphal name

criminal trial.
Court's

can never

is

to

that
be

society's

regarded

Confrontation Clause inquiries.

Accordingly,

be

given under

over objection

in a

But, this interpretation effectively ignores the

instruction

factfinding

be admitted

may

we decline

to

as

interest
an

in

important

See Bourjaily, 483

___ _________

read Smith
_____

in

accurate
factor

in

U.S. at 182.

the wooden

fashion

petitioner suggests.
Even

before Bourjaily
_________

we

held that

Smith's
_____

guiding

principle, insofar
"is not, like a
Vinzant,
_______

as it

concerns a witness's

rule of plane geometry,

current address,

absolute."

McGrath
_______

v.

528 F.2d 681, 684 (1st Cir.), cert. dismissed, 426 U.S.
_____ _________

902 (1976).

In

it concerns

our estimation, the Smith principle,

_____
witness's true

Accord United States

______ _____________

v. Rangel,
______

name, is

likewise not

534 F.2d 147,

insofar as

absolute.

148 (9th

Cir.),

cert.
_____

denied, 429 U.S. 854

______

rigid

rule

(1976) (Smith "does

_____

of disclosure

[of

witness's

not establish a

name], but

rather

discusses disclosure against a background of factors") (citations

and internal quotation marks omitted).

The long and short of it is that the Smith standard has

_____
a core purpose:
testimony

of

defendant's
purpose

criminal conviction based on

witness who

remains

mind.

McGrath,
_______

528 F.2d

is not

excluding
itself

to prevent a

implicated,

otherwise

gives no

admissible

mere

shadow" in

at 685.
no

When

reason for

testimony.

indication that

beyond the confines

flung galaxies.

we see

"a

its guiding

the

that core

reflexively

Certainly,

Smith
_____

principle extends

of its articulated rationale

See Smith, 390

___ _____

the

into such far-

U.S. at 132 (explaining that the

defendant must be accorded a fair opportunity to place an adverse

witness

in the witness's proper setting and to put his testimony

and credibility to a meaningful test).

Against this backdrop, it

is readily apparent that all

pseudonyms are not equal in the eyes of the Confrontation Clause.

Rather, courts must gauge the pull of Smith in any
_____
the

degree to

which its

rationale applies.
7

given case by

Sometimes,

as in

Smith itself, a witness's use of a fictitious name will transform

_____
him

into

a wraith

examination.
no

more

and thereby

Other times, the

than a

mere

thwart

the efficacy

of cross-

use of a fictitious name will

curiosity,

possessing no

be

constitutional

significance.3
B
B
_

The case at hand is at a substantial remove from Smith.

_____
In

Smith, unlike here, the

_____

sole purpose of testifying.

witness adopted a

pseudonym for the

In Smith, unlike here, the defendant

_____

did not know the witness's true identity before the jury returned
its

verdict.

the

direct result

distinctions

In Smith, unlike here, the witness's anonymity was

_____
of

government contrivance.

more than

sufficient to

propel this

We find

these

case

out of

Smith's precedential orbit.

_____
1.
1.
witness

testified

In this

situation,

(Christopher

cognominal fancy assumed

the name

Martel) was

under which
not

solely for the purpose of

proceeding and bearing no relation

some

the

passing

the judicial

to the witness's life outside

the courthouse.
clasped to his

To the contrary, this was a name the witness had

bosom and made his own.

He held himself

out to

____________________

3Petitioner's insistence upon a bright-line rule, slavishly

followed, could produce a bizarre anomaly.
One can easily
envision circumstances in which a witness testifying under his
birth name might present a much more spectral figure than if he
or she testified under an adopted name.
For example, the
appellations Issur Danielovitch Demsky, Betty Joan Perske, and
Marion Michael Morrison will probably be of less assistance in
placing the affected individuals in their proper settings than
their screen names (Kirk Douglas, Lauren Bacall, and John Wayne,
respectively).
8

the

world

as

Christopher

Siegfriedt's community by
name

at his

recounted

own
in

Martel;

that name;

address
the

Martel/Ciccarelli was

an

he

was

and he was

address

known by
he

course

of

not some

incorporeal apparition

his ostensible counterpart in Smith

_____

his

which

identifiable

testimony.

in

that

accurately

Thus,

as was

but a flesh-and-blood human

being easily placed within his relevant context.

2.
2.
effectively

At the probable cause hearing, petitioner was able

to question

because petitioner

the

declarant qua

discovered the

Martel.

witness's true name

Moreover,

prior to

trial, he

was able

effectively to

declarant qua Ciccarelli.

opportunities, in
examination

the

instance

through

latter instance by

Smith's guiding principle

_____
and

satisfied.
12,

putting
See
___

17 (1st

placing

to

generally United States v.

_________ _____________

Cir. 1992)

cross-examination

(explaining that

are to

impeach

cross-

calling witnesses to

the witness

his credibility

both these

lengthy

debunk the declarant's reputation for truthfulness.

setting

impeach the

He took full advantage of

first

and in the

investigate and

The goals of
in his

proper

test

were

fair

McLaughlin, 957 F.2d

__________
the main

credibility and

purposes of
to expose

witness's biases and possible motives for testifying) (collecting

cases); see also Clark
___ ____ _____

v. Ricketts, 958 F.2d 851, 855

________

1991)

Confrontation

Clause

reveal

name

(discerning

informant's

no

refusal

defendant knew

to

the witness's

had an opportunity to

his

(9th Cir.

violation
while

name before trial

despite

testifying;

and, therefore,

conduct both an out-of-court investigation

9

and

an in-court

examination),

cert.
_____

denied,
______

101 S.

Ct.

796

(1992).
3.
3.

In Smith, the defense failed to learn the witness's

_____

true name and

address because government actors

and the

judge

thereby

restricting

however,

combined to

there

is

the
no

scope

hidden

preliminary

hearing

or

objections

or

conducted

of

that

otherwise

that
at

the

presiding

imposed

petitioner's

the

identity

cross-examination.

by

access to

the witness,

cross-examination.

suggestion

Martel/Ciccarelli's

restriction on

block its

the prosecutor

the

any
That

attorney

State

Here,
knew

time
judge

of

the

sustained

Smith-related
_____
the

of

scope

cross-examination

failed

to

reveal

Martel/Ciccarelli's birth name was not in any way attributable to

official conduct.

We believe that this distinction is significant because

"the Confrontation Clause guarantees an opportunity for effective

___________
cross-examination, not
whatever way,

cross-examination

and to whatever

that is

extent, the defense

effective

in

might wish."

Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).

________
_________

This

precept applies even when the witness himself is unequivocally to

blame for
See
___
lapse

the relative ineffectiveness of the cross-examination.

id. at 19 (discussing
___
prevented

questions).
simply because

him

from

a situation where
answering

a witness's memory

potentially

discrediting

We do not think this precept diminishes in vitality

the

defense's opportunity

to cross-examine

the

declarant arises at

a preliminary hearing.

See,
___

e.g., Roberts,
____ _______

10

448 U.S.

at 73 n.12 (indicating that,

"no inquiry
Because

into

'effectiveness' is

petitioner

questions the

under such circumstances,

[ordinarily]

effectiveness

required").4
of

the cross-

examination rather than an undue, State-imposed limitation on its

scope,

he is

hard

pressed to

contend

that Smith
_____

requires

reversal here.
4.
4.

When

this case is

judged by the

totality-of-the-

circumstances test that proper application of the Smith principle

_____
requires,
therefore,
probable

it readily
that
cause

passes constitutional

Martel/Ciccarelli's
hearing

did

not,

use
without

muster.5
of an

We hold,

alias

more,

at

render

the

that

testimony inadmissible at a later proceeding in the same case.

C
C
Once
unquestionably

the
meets

Smith
_____

hurdle

the

Roberts
_______

is

cleared,

criteria.

this
Apart

case

from

Martel/Ciccarelli's unique

brand of

basis

that

for

any suggestion

cross-examination was
testified under

the

incomplete

name-dropping, there

is no

defense's opportunity

or inadequate.

oath, before a judge,

The

and in the same

for

witness
case.

____________________

4The Roberts Court indicated that an exception might lie for

_______
extraordinary cases in which defense counsel provided ineffective
assistance at the earlier hearing. See Roberts, 448 U.S. at 73
___ _______
n.12, In the case at hand, however, appellant has advanced no
such claim.

5Although we deem the three main points of divergence

between this case and Smith, see text supra, to be important, we
_____ ___
_____
emphasize that Smith must be applied in a case-specific fashion,
_____
having in mind the entire array of circumstances that attend the
testimonial proffer in any given situation.
We
do not,
therefore,
assign
decretory
significance
to
any single
distinguishing factor.
11

verbatim record
The

of the

defendant was

permitted

to

represented

we find that the

tape recording

contemporaneously made.

by counsel.

cross-examine without

these circumstances,
classified the

proceedings was

undue

His attorney
restriction.

was

Under

state court appropriately

within the hearsay

exception for

prior testimony of an unavailable declarant.

See Green, 399 U.S.

___ _____

at 165-66.

IV.
IV.
___
Conclusion
Conclusion
__________
We need go no further.
name?" and with

With Juliet we ask "What's in a

her we conclude "[t]hat which we

any other name would

smell as sweet."

call a rose by

W. Shakespeare, Romeo and

_________

Juliet, Act II, Sc. ii.

______

Though the State's witness had one legal

name, he was not made a

phantom to the defense merely because he

testified
some

at the preliminary hearing under a name he had assumed

time previously.

cross-examination

which

defense's subsequent
the witness's

The complete and adequate opportunity for

prevailed

first hearing,
with knowledge

well within a

the

of

credibility to the test at

absence of State action limiting

of the defense's cross-questioning,

testimony

the

opportunity, once armed

birth name, to put his

trial, and the utter

at

the scope

combine to bring the earlier

firmly rooted hearsay

exception.6

The

____________________

6We note in passing that, even apart from whether this

evidence fell within a firmly rooted hearsay exception, the
Confrontation Clause would be satisfied so long as the totality
of the
circumstances evinced the
requisite guarantees of
trustworthiness.
See Wright, 110 S. Ct. at 3148 (describing
___ ______
12

Confrontation

Clause was

satisfied in

petitioner's case.

See
___

generally Maryland
_________ ________

v.

Craig, 110 S. Ct. 3157,

_____

"rigorous testing [of a

proceeding"
Amendment).

Affirmed.
Affirmed.
________

in order

3163 (1990) (discussing the need for

witness] in the context of

to satisfy

the

an adversary

imperatives of

the Sixth

____________________

test; collecting cases).

Although we do not decide the case on
this ground, we remark the obvious:
a strong argument for
admissibility can be made on this basis, particularly since
Martel/Ciccarelli appeared at the probable cause hearing without
the protection of immunity and spoke about matters within his
personal knowledge.
These latter two points are important
considerations in a trustworthiness inquiry. See Zannino, 895
___ _______
F.2d at 7.
13