MEMORANDUM RE: MOTION FOR A NEW TRIAL AND SENTENCING
GERTNER, District Judge.
A jury convicted Paul Hansen (“Hansen”), 25 years old, of four charges: Count One charged robbery affecting commerce (18 U.S.C. § 1951(a), the Hobbs Act) and aiding and abetting said robbery (18 U.S.C. § 2); Count Two charged conspiracy to commit the same robbery (18 U.S.C. § 1951(a)); Count Three charged use of a firearm in connection with a crime of violence thereby causing a death by murder (18 U.S.C. §§ 924(c) & 924(j)); and Count Four charged obstruction of justice (18 U.S.C. § 1623).
Hansen admitted that on July 28, 1996, he and co-defendant Brendan Brennan stole a white minivan. Theft of that car alone would hardly have been a federal offense, let alone one exposing Hansen to the maximum penalty that flows from conviction on Counts One — Three, namely, life imprisonment.
What made Hansen’s crime a federal one, subject to extraordinary penalties, was the later use of that minivan by others and Hansen’s relationship to those people and events. Three days later, on July 31, 1996, the minivan was used in the robbery of a Dunbar armored car. The alleged perpetrators were other individuals — John Fidler and Dennis Bird — individuals who are not co-defendants in this case. (Indeed, as of the time of the trial they had not been apprehended.) During the robbery, one of the perpetrators, using a semiautomatic weapon, brutally killed Edward Kubera, a Dunbar guard.
There is no doubt that Hansen was not present during the robbery. Nor was there any indication that Hansen knew when or where the robbery would take place, or what was its specific object. Nevertheless, the jury found Hansen responsible on all four counts.
The central issue in the trial was the relationship between Hansen’s theft of the van, on the one hand, and the armored car robbery and its bloody consequences, on the other. To a degree, even after conviction, the same issues consumed the sentencing proceeding. Although I already have ruled from the bench and announced Hansen’s sentence, I have restated my findings in this memorandum because of the complexity of the issues.
A.
Motion for a New Trial
In a motion for a new trial, the defendant mounted a single challenge to an evidentiary ruling. Federal authorities recorded a jailhouse conversation between Hansen and Stephen Brennan, the father of coconspirator Brendan Brennan. Special Agent Travaglia, who overheard and presided over the taping of the conversation, attested to its authenticity. In his post-verdict submission, the defendant challenged the admission of the Stephen Brennan tape. Defense counsel claimed that unless Stephen Brennan himself testi-fled, the tape was somehow inadmissible hearsay, and deprived Hansen of his confrontation rights.
I denied the motion for a new trial. The government was seeking to introduce
Hansen’s
statements on the tape, which were entirely admissible admissions of a party-opponent under Fed.R.Evid. 801(d)(2). Stephen Brennan’s questions of Hansen were admitted only to provide context under Fed. R. 106, not for their truth.
See United States v. McDowell,
918 F.2d 1004, 1007-8 (1st Cir.1990);
U.S. v. Ariza Ibarra,
605 F.2d 1216, 1224 (1st Cir.1979). Defense counsel’s proposed cross-examination of Brennan about his criminal record, for example, would have been irrelevant.
In any event, Stephen Brennan was available to the defendant as well. But Hansen did not call him. Nor did counsel bother to cross-examine Agent Travaglia on the subject of Stephen Brennan’s record, even though the government opened the door during its questioning.
Thus, the issues which defense counsel raised in the motion for a new trial and for acquittal were insubstantial. Of far greater concern to the Court were issues that counsel did not raise and avenues that counsel did not pursue, some of which the Court had to grapple with at sentencing.
B.
Sentencing
1.
Background to the Charges
Two counts grow out of the same nexus of facts. In Count One, Hansen was charged with aiding and abetting those
who in fact committed the robbery of the Dunbar armored car on July 31, 1996. In Count Two, Hansen was charged as a co-conspirator in the same offense.
With respect to aiding and abetting, I instructed the jury that the government must prove that Hansen “willfully associated himself in some way with the crime” and “willfully participated in it as he would in something he wished to bring about.”
In addition, I admonished the jury,
inter alia,
that the “government must prove that Mr. Hansen was a participant at the time of the offense or at an earlier time and not just a knowing spectator, someone who picked up information off the street to talk about.”
With respect to the conspiracy, I instructed the jurors that in order to return a guilty verdict they must find that a conspiracy existed to commit a Hobbs act robbery between others, that the defendant “willfully joined” it, and that he “agreed to participate in the conspiracy with knowledge of its unlawful purpose and with the specific intent of furthering its objectives.”
Count Three, by far the most serious count, charges Hansen with responsibility as a co-conspirator beyond the armored car robbery itself, to include a coconspirator’s use of a firearm in furtherance of the Dunbar armored car robbery, and finally, the death of Mr. Kubera. With respect to the coconspirator’s acts, the government had to show that during the armored car robbery conspiracy one of the participants “used or carried a firearm or firearms,” that this occurred during the time of Hansen’s membership in the conspiracy, and that the firearms were used “in furtherance” of the conspiracy.
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MEMORANDUM RE: MOTION FOR A NEW TRIAL AND SENTENCING
GERTNER, District Judge.
A jury convicted Paul Hansen (“Hansen”), 25 years old, of four charges: Count One charged robbery affecting commerce (18 U.S.C. § 1951(a), the Hobbs Act) and aiding and abetting said robbery (18 U.S.C. § 2); Count Two charged conspiracy to commit the same robbery (18 U.S.C. § 1951(a)); Count Three charged use of a firearm in connection with a crime of violence thereby causing a death by murder (18 U.S.C. §§ 924(c) & 924(j)); and Count Four charged obstruction of justice (18 U.S.C. § 1623).
Hansen admitted that on July 28, 1996, he and co-defendant Brendan Brennan stole a white minivan. Theft of that car alone would hardly have been a federal offense, let alone one exposing Hansen to the maximum penalty that flows from conviction on Counts One — Three, namely, life imprisonment.
What made Hansen’s crime a federal one, subject to extraordinary penalties, was the later use of that minivan by others and Hansen’s relationship to those people and events. Three days later, on July 31, 1996, the minivan was used in the robbery of a Dunbar armored car. The alleged perpetrators were other individuals — John Fidler and Dennis Bird — individuals who are not co-defendants in this case. (Indeed, as of the time of the trial they had not been apprehended.) During the robbery, one of the perpetrators, using a semiautomatic weapon, brutally killed Edward Kubera, a Dunbar guard.
There is no doubt that Hansen was not present during the robbery. Nor was there any indication that Hansen knew when or where the robbery would take place, or what was its specific object. Nevertheless, the jury found Hansen responsible on all four counts.
The central issue in the trial was the relationship between Hansen’s theft of the van, on the one hand, and the armored car robbery and its bloody consequences, on the other. To a degree, even after conviction, the same issues consumed the sentencing proceeding. Although I already have ruled from the bench and announced Hansen’s sentence, I have restated my findings in this memorandum because of the complexity of the issues.
A.
Motion for a New Trial
In a motion for a new trial, the defendant mounted a single challenge to an evidentiary ruling. Federal authorities recorded a jailhouse conversation between Hansen and Stephen Brennan, the father of coconspirator Brendan Brennan. Special Agent Travaglia, who overheard and presided over the taping of the conversation, attested to its authenticity. In his post-verdict submission, the defendant challenged the admission of the Stephen Brennan tape. Defense counsel claimed that unless Stephen Brennan himself testi-fled, the tape was somehow inadmissible hearsay, and deprived Hansen of his confrontation rights.
I denied the motion for a new trial. The government was seeking to introduce
Hansen’s
statements on the tape, which were entirely admissible admissions of a party-opponent under Fed.R.Evid. 801(d)(2). Stephen Brennan’s questions of Hansen were admitted only to provide context under Fed. R. 106, not for their truth.
See United States v. McDowell,
918 F.2d 1004, 1007-8 (1st Cir.1990);
U.S. v. Ariza Ibarra,
605 F.2d 1216, 1224 (1st Cir.1979). Defense counsel’s proposed cross-examination of Brennan about his criminal record, for example, would have been irrelevant.
In any event, Stephen Brennan was available to the defendant as well. But Hansen did not call him. Nor did counsel bother to cross-examine Agent Travaglia on the subject of Stephen Brennan’s record, even though the government opened the door during its questioning.
Thus, the issues which defense counsel raised in the motion for a new trial and for acquittal were insubstantial. Of far greater concern to the Court were issues that counsel did not raise and avenues that counsel did not pursue, some of which the Court had to grapple with at sentencing.
B.
Sentencing
1.
Background to the Charges
Two counts grow out of the same nexus of facts. In Count One, Hansen was charged with aiding and abetting those
who in fact committed the robbery of the Dunbar armored car on July 31, 1996. In Count Two, Hansen was charged as a co-conspirator in the same offense.
With respect to aiding and abetting, I instructed the jury that the government must prove that Hansen “willfully associated himself in some way with the crime” and “willfully participated in it as he would in something he wished to bring about.”
In addition, I admonished the jury,
inter alia,
that the “government must prove that Mr. Hansen was a participant at the time of the offense or at an earlier time and not just a knowing spectator, someone who picked up information off the street to talk about.”
With respect to the conspiracy, I instructed the jurors that in order to return a guilty verdict they must find that a conspiracy existed to commit a Hobbs act robbery between others, that the defendant “willfully joined” it, and that he “agreed to participate in the conspiracy with knowledge of its unlawful purpose and with the specific intent of furthering its objectives.”
Count Three, by far the most serious count, charges Hansen with responsibility as a co-conspirator beyond the armored car robbery itself, to include a coconspirator’s use of a firearm in furtherance of the Dunbar armored car robbery, and finally, the death of Mr. Kubera. With respect to the coconspirator’s acts, the government had to show that during the armored car robbery conspiracy one of the participants “used or carried a firearm or firearms,” that this occurred during the time of Hansen’s membership in the conspiracy, and that the firearms were used “in furtherance” of the conspiracy.
To link Hansen to that complex of acts, however, the government did not have to show that guns and even murder were objects of the conspiracy he joined. Rather, under
Pinkerton v. United States,
328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the government need only have shown with respect to Hansen that the use of firearms was reasonably foreseeable.
See id.
at 648, 66 S.Ct. 1180.
Finally, extending
Pinkerton
foreseeability principles still further, the government sought to hold the defendant accountable for the murder of Mr. Kubera, on the basis that the shooting was a “foreseeable consequence of the use of a firearm in the course of a conspiracy.”
The jury concluded that the government met its burden of proof on all three counts, largely through the testimony of Brendan Brennan.
Without Brennan, there was no case. If the evidence were only that Hansen somehow figured out that the van was likely to be used in an armored car robbery, because the person who asked him to steal it had a reputation for “doing” such robberies, there would have been a substantial question as to whether that evidence was sufficient for a conviction under Count Three.
But the government offered more. Brennan, through a series of questions that were at least arguably leading,
and to which defense counsel did not object, testified that the defendant arranged to steal the van for John Fidler; that Fidler told Hansen that “they” needed the van for an armored car robbery; and further, that guns would be used in the robbery. Brennan testified that he and Hansen knew that Fidler sought to take the place of other men who regularly did armored car heists, but who were apprehended after a celebrated robbery in Hudson, New Hampshire. Further, Brennan testified that he and Hansen discussed the fact that these armored car robberies resulted in killings. Finally, Brennan testified that their payment for the car theft was not a flat amount, but rather would be contingent on the amount that the robbers cleared in their armored car heist.
In addition, Brennan testified that he and Hansen knew that they were supposed to dress a certain way while stealing the car, based on their dealings with other individuals who committed armored car robberies
Altogether, this testimony was tailored perfectly to the issues that the government had to prove. Brennan, in short, put all of the requirements of Counts One, Two, and Three into Hansen’s mouth.
C.
Guidelines Issues
Count One (Hobbs Act robbery and aiding/abetting) and Count Two (conspiracy) are grouped together pursuant to the grouping principles in U.S.S.G. § 3D1.2 (“Group 1”). Count Three (use of a firearm causing death), however, must be grouped separately because the guideline and statutory provisions, U.S.S.G. § 2K2.4 and 18 U.S.C. § 924(e), require a consecutive term of imprisonment (“Group 2”). Count Four (obstruction of justice), may be grouped with the “Group 1” counts defining the underlying offense (the offense with respect to which the obstructive conduct occurred), under U.S.S.G. § 3D1.2(c). That section provides for a two-level enhancement to the base offense level.
1.
First Degree Murder or Second Degree Murder
The critical question in “Group 1” is outlined in U.S.S.G. § 2B3.1(c)(l): If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111, then the relevant guideline is the First Degree Murder guideline, or U.S.S.G. § 2A1.1. In that case, the base offense level would be 43, with a two-level enhancement for obstruction of justice, for a total of 45.
If, on the other hand, the circumstances suggest that “the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted.” U.S.S.G. § 2A 1.1. As the guidelines note: “The extent of the departure should be based upon the defendant’s state of mind
(e.g.,
recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct. However, the Commission does not envision that departure below that specified in § 2A1.2 (Second Degree Murder) is
likely to be appropriate.”
Id.,
comment, (n. 1). Under those circumstances, the base offense level is 33 with a two-level enhancement for obstruction of justice, for a total of 35.
Based upon a total offense for first degree murder of 45 and criminal history category of VI, the Guidelines range would be life, with a 60-month consecutive term of imprisonment under Count Three. Based upon a total offense level for second degree murder of 35, the range is 292-365 months, enhanced by the 60-month mandatory minimum.
I concluded that the second degree murder guideline was the most appropriate. I did so because of the testimony I heard at trial concerning the circumstances surrounding the offense, the defendant’s role, and his knowledge of what was about to happen. The defendant was 19. The people who enlisted him in stealing the van were at least ten years older, with a brutal reputation in Charlestown. While the law holds Hansen responsible for the foreseeable consequence of his acts, it is clear that his relationship to the armored car robbery that resulted in the tragic murder of Edward Kubera was tenuous. He had, at most, only the most general idea of the plans of Fidler and Bird. He did not know
when
the robbery would take place,
where,
or of
whom.
While Brennan suggests that Hansen knew that guns would be involved — semi automatic guns at that — Hansen had no control over how they would be brandished, or indeed, whether they would be used at all.
In this area, the guidelines permit me to make a more nuanced judgment as to what kind of sentence Hansen deserves than the jury did. The jury may have found the killing “foreseeable” but I cannot conclude that it was “intentional.” If there ever were a case in which the downward departure to a second degree murder guideline was appropriate, it is this one.
I therefore will depart to a level 33 under U.S.S.G. § 2A1.1, n. 1, which, with the enhancement for obstruction of justice, yields a level 35.
2.
Defendant’s Criminal History and Background
Paul Hansen was raised in a functional family, with loving parents and siblings. His early involvement with alcohol, illegal and prescription drugs soon evolved into an addiction, an addiction which entangled him with “friends” ready, willing, and able to commit a variety of offenses. As of the time of this offense, his record was substantial, the highest level under the guidelines (Category VI).
D.
Conclusion
For stealing a minivan, and his vicarious legal responsibility for the armed robbery and killing that followed, and for lying to the Grand Jury, Hansen was sentenced to the following: 240 months on counts one and two, to be served concurrently with each other, a term of 52 months on count four, to be served consecutively with counts one and two, and a term of 60 months on count three, to be served consecutively to the terms imposed on counts one, two and four. In addition, the defendant was obliged to make restitution to Dunbar Armored car in the amount of Three Thousand Seven Hundred Seventy-Five and 00/100 ($3,775.00) Dollars, imme
diately or through a court ordered schedule. Upon release from imprisonment, the defendant shall be placed on supervised release for five years; three years on Count One, Two, and Four; and five years on count three; all such terms to run concurrently.
SO ORDERED.