## Facts

- Tishon Brown, a convicted felon on supervised release for prior armed-robbery convictions, was prosecuted in the District of New Jersey for possessing a firearm in violation of 18 U.S.C. § 922(g)(1).
- Around 10:50 p.m., a Camden police officer responding to an unrelated call was approached by two unidentified men who appeared highly agitated and reported that a nearby man was waving a gun and threatening to shoot someone.
- The men led the officer toward the reported location and pointed out Brown walking nearby; the officer stopped Brown, leading to recovery of a firearm (Brown claimed the firearm was planted).
- At Brown’s bench trial, the government introduced the officer’s testimony repeating the two men’s statements to show why Brown was stopped and to support the claim Brown had been brandishing a gun.
- Over Brown’s hearsay objection, the district court admitted the statements under Federal Rule of Evidence 803(2) (excited utterance) and found Brown guilty.
- Based on the firearm conviction, the district court also revoked Brown’s supervised release and imposed a consecutive prison term for the violation.

## Issues

1. Whether unidentified bystanders’ statements accusing Brown of brandishing a gun were admissible as excited utterances when the alleged “startling event” was supported only by the statements themselves.
2. Whether admission of the hearsay, if erroneous, was harmless to the § 922(g)(1) conviction.
3. Whether the supervised-release revocation and consecutive sentence could stand if the firearm conviction was reversed.

## Decision

- The Third Circuit reversed the § 922(g)(1) conviction and remanded for further proceedings.
- The court held the district court erred in admitting the two men’s statements as excited utterances because the government did not establish sufficient reliability for the alleged startling event or the anonymous declarants’ accusations.
- The court held the error was not harmless because the hearsay went to the central disputed issue and could have materially bolstered the government’s case.
- The court also reversed the supervised-release revocation judgment and the consecutive sentence because they were predicated on the reversed firearm conviction.
- A dissent would have affirmed, reasoning the declarants’ apparent agitation and the immediacy of the report adequately supported admission under Rule 803(2).

## Legal Principles

- Under Fed. R. Evid. 803(2), an excited utterance must relate to a startling event and be made while the declarant remains under the stress caused by that event.
- When the declarants are unidentified and unavailable, courts must scrutinize trustworthiness because ordinary testing mechanisms (including cross-examination and evaluation of motive) are absent.
- The proponent must show a sufficiently reliable basis that the startling event occurred; proving the event solely through the contested out-of-court accusation risks circular admission of unreliable hearsay.
- Erroneous admission of central hearsay is not harmless when it materially affects resolution of the core credibility dispute at trial.
- A supervised-release revocation and consecutive sentence predicated on a conviction cannot stand when the predicate conviction is reversed on appeal.

## Conclusion

The Third Circuit required reliable proof of the underlying startling event before admitting anonymous criminal accusations as excited utterances, reversed Brown’s felon-in-possession conviction as prejudicially affected by improperly admitted hearsay, and reversed the related supervised-release revocation and consecutive sentence based on that conviction.


United States v. Brown, 254 F.3d 454 (3d Cir. 2001)