CA1: testimonial hearsay - and how something isn’t a Romeo-Juliet offence

US v. Cadieux, No. 05-2567 affirms a felon-in-possession conviction subject to the longer sentences under the ACCA, see 18 U.S.C. § 924(e)(1). A 911 call was admitted, despite a Crawford/Davis challenge fails because the statements made by a “victim” were non-testimonial because they were in “real time” and specifically requested police assistance.  The First rejects the idea that because the declarant knew that they would be recorded for the police that they were testimonial, and the dispatcher’s statements were related to procuring police assistance. 

Also, a “1989 conviction for indecent assault and battery on a child under fourteen” as a violent felony for purposes of the ACCA.  The First provides a useful analysis for determining whether a state law crime is violent.  We know where this is going.  The First looks at its other precedent and concludes that “inappropriate sexual touching [by adults against children] is a crime that presents a serious potential risk of physical injury to another” and is therefore violent.”  The First parses though the state statutes, and concludes that the likelihood that the defendant was convicted of a “Romeo-Juliet” offense is quite low. Why?  “We have scoured the caselaw and could not discover a single reported case in which a juvenile was convicted under Section 13B for consensual sexual activity with a similarly-aged youth.”  Okay, that part is crap.  Just because there isn’t a reported case doesn’t mean that people have not plead guilty.  They could have done a lot better than just looking on Westlaw.  But, since they decided they wanted to send this guy to jail, they did not bother to take the issue seriously.  Whatever the case, they First does make a good point that the liklihood of this being a Romeo-Julliet conviction is low, and then says “If and when a person is convicted under section 13B for consensual sexual contact with a youth of the same or similar age, and sentencing enhancement based on that conviction is sought, we reserve the right to revisit the issue” (Can courts “reserve” rights?  What does that even mean?)

The First blabbers a bit about how its decision is supported by “common sense.”  Their logic actually made sense until they broke out the rhetoric.