United States v. Pratt

• Court: Court of Appeals for the First Circuit
• Decided: January 18, 1996
• Docket: 95-1666
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                                 ____________________



        No. 95-1666



                              UNITED STATES OF AMERICA,



                                 Plaintiff, Appellee,



                                          v.



                                   DAVID P. PRATT,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Steven J. McAuliffe, U.S. District Judge]
                                              ___________________



                                 ____________________


Before



                                Torruella, Chief Judge,
                                           ___________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                              and Selya, Circuit Judge.
                                         _____________



                                 ____________________


M. Kristin Spath, Assistant Federal Defender, for appellant.
            ________________

            Peter E. Papps, First Assistant U.S.  Attorney, with whom Paul  M.
            ______________                                            ________

        Gagnon, United States Attorney, was on brief for appellee.
        ______  ______________________



                                 ____________________



                                   January 18, 1996

                                 ____________________



ALDRICH, Senior Circuit Judge.   Defendant David P.
                               ____________________



            Pratt,  having been allowed to withdraw a plea of guilty, was



            tried  to a jury for  violation of United  States Code, Title



            18, Section  876 (Mailing  a  Threatening Communication)  and



            found guilty.   He  now appeals,  with new  counsel, claiming



            violation  of   Fed.R.Evid.  404(b)   by  the   admission  of



            prejudicial testimony of another  threat, and from a sentence



            that  included a two level  upward departure.   We remand for



            further consideration of sentence.



                      In   August,   1991,  defendant's   automobile  was



            repossessed  for nonpayment of an installment, and discovered



            to  contain  a  substantial  number of  automatic  and  semi-



            automatic firearms and explosive  devices.  These were turned



            over to  the Goffstown, New Hampshire,  Police Department but



            eventually found to be defendant's lawful property.  In spite



            of  this  finding, Police  Chief  Stephen  Monier refused  to



            return  them,  absent  a  court order.    Defendant,  greatly



            angered  by  the delay,  complained a  number  of times.   He



            phoned  the police station on  the morning of  July 20, 1992,



            and was told to call  back that afternoon.  An hour  later he



            telephoned Chief Monier's home and spoke to a young friend of



            Monier's  ten year  old daughter,  who said  that he  was not



            there.   The man stated that  he was David Pratt  and to tell



            her father, "I  know where he lives."    When informed of the



            call, Monier  took it to be  a serious threat.   On September


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14,  1992, a  New  Hampshire court  ordered that  defendant's



            weapons and  devices be  returned to him,  and the  Goffstown



            police complied.



                      On October  1, 1992,  Monier  received through  the



            mail,  postage prepaid, a carton which was found to contain a



            dead and badly mutilated  pig of some 29 pounds.   There were



            no   tell-tale  writings   on,  or   in,  the   package,  but



            fingerprints, identified to be defendant's, were found on the



            outside.   At trial defendant testified that the pig was his;



            that  he had  shot it,  following an  accident, and  that one



            Jennifer  Gagnon stole it from his refrigerator and mailed it



            to Monier without his  suggestion or knowledge.  By  the time



            of trial, Gagnon was deceased.



                      Although  there  was  other   supporting  evidence,



            including defendant's boasting to a friend that he had sought



            to scare Monier  by sending the mutilated pig, the government



            chose  to  tighten  its  case by  eliciting  evidence  of the



            threatening telephone call.  Defendant objected at the outset



            to the admission of  any evidence of the  call, and to  "this



            whole line  of  testimony."   The  court disagreed,  but  did



            caution the jury to consider any evidence, if a prior threat,



            as distinct from the pending charge, and as relevant "only to



            show  things  like  the  identity of  the  defendant  or  his



            possible  motive or  his  possible intent  or the  absence of


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mistake  or  accident with  respect to  the charge  that's on



            trial here".



                      On  appeal  defendant  argues  that  the  telephone



            threat  was very  different from  the one  with which  he was



            charged, and that its introduction  was simply to blacken his



            character as forbidden by Rule 404(b).  See, United States v.
                                                    ___  _____________



            Tuesta-Toro, 29 F.3d  771, 775 (1st Cir. 1994), cert. denied,
            ___________                                     ____________



            ___ U.S.  ___, 115  S.Ct. 947,  130 L.Ed.2d  890 (1995).   He



            contends,  first, that it  was inadmissible  altogether under



            Fed.R.Evid.  404(b),1  or that  its  prejudice  would in  any



            event  substantially exceed its probative value, rendering it



            excludable  under  Fed.R.Evid.  403.2   The  government says,



            inter  alia, that  the  threat  displayed defendant's  grudge
            ___________



            against Chief Monier, an intent to act upon it, and knowledge



            of  his victim's  residence  (to which  the packaged  pig was



            addressed),  as well as  being a  self-identification against



                                
            ____________________



            1.  Rule 404(b) provides, in relevant part:



                      Evidence of other crimes, wrongs, or acts

                      is not admissible to prove  the character

                      of a  person in  order to show  action in

                      conformity therewith.   It may,  however,

                      be admissible for other purposes, such as

                      proof  of  motive,  opportunity,  intent,

                      preparation,  plan, knowledge,  identity,

                      or absence of mistake or accident.



            2.  Rule 403 states, in relevant part:



                      Although   relevant,   evidence  may   be

                      excluded  if  its   probative  value   is

                      substantially outweighed by the danger of

                      unfair prejudice . . .



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his  own interest.  We quite agree that the disputed evidence



            had  "special relevance" to  material issues, Tuesta-Toro, 29
                                                          ___________



            F.3d  at  775 --  even  defendant  concedes the  purpose  for



            introducing it  included showing  the identity of  the person



            who  mailed  the  pig --  but  the  prosecution's  use of  it



            progressed well beyond the necessary.  Its admission provided



            the  basis   for  subsequent  dramatization  of   the  call's



            emotional effect upon Monier  and his family, particularly on



            his young daughter.  This was not relevant, and magnified the



            very prejudice that  the Rules of  Evidence were designed  to



            minimize.3   Fed.R.Evid. 403,  404(b).  Tuesta-Toro,  29 F.3d
                                                    ___________



            at 775; United  States v. Aguilar-Aranceta, 58  F.3d 796, 798
                    ______________    ________________



            (1st Cir. 1995). 



                      However,  defendant's failure  to call  the court's



            attention  to prosecutorial  excess as  it occurred,4  and to



            request consideration  of  the probative  value  of  proffers



            concerning, for  example, the anxiety of  the Chief's family,



            his  keeping a firearm beside  his bed, and  the inability of



                                
            ____________________



            3.  The  government's brief  is  totally silent  in spite  of

            defendant's detailed  complaint.   At oral argument  its sole

            response  to our questioning was that its purpose was to make

            sure the jury  realized there had been  a call, and that  the

            "cold record"  may look worse  to us.   Counsel's thermometer

            needs adjustment.



            4.  Defendant's  objection  at   the  time  of  its   initial

            introduction  "to   this  line   of  testimony"  related   to

            admissibility  of  the  fact  of the  phone  call,  correctly
                                    ____

            overruled by  the court, not to  the subsequent dramatization

            of  the family's fears,  which elicited not  a single protest

            from defense counsel.



                                         -5-



his  little  girl  to  sleep alone  following  the  telephone



            threat, in light of their likely prejudicial effect, deprived



            the court  of an  opportunity to make  particularized rulings



            which we could  now review. It  is counsel's duty not  to sit



            idly  by  while  his  case is  conspicuously  suffering,  see
                                                                      ___



            Clemente v.  Carnicon-Puerto Rico Mgmt. Assoc.,  52 F.3d 383,
            ________     _________________________________



            387  (1st Cir. 1995), and it was his responsibility to object



            when  testimony  strays outside  the  court's  prior limiting



            instruction.   Courts may be  reluctant to interfere  and may



            have  difficulty deciding  whether  to exclude  testimony  on



            their own.   We review  for plain error  alone.   Fed.R.Evid.



            103.   Tuesta-Toro,  29 F.3d  at 775  (absent contemporaneous
                   ___________



            objection,  court  will  reverse  only  if  error  "seriously



            affected the fundamental fairness  and basic integrity of the



            proceedings") (citation omitted).



                      While testimony  as  to the  threat's  effect  upon



            Monier and his family must have been detrimental to defendant



            --  though not  so  pervasive  as  defendant  claims  --  the



            government's  case  on  the merits  was  too  strong, in  our



            opinion,  to have  made this  harm to  defendant a  factor of



            consequence in  the result.  Defendant's  own statements, his



            fingerprints on  the package, his established  anger over the



            unlawful retention of his firearms,  his ownership of the pig



            carcass,  and, notably, the absence of  any visible motive to



            have caused  the conveniently deceased Gagnon  to have mailed


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it,  were overwhelming.   While  we might  order a  new trial



            simply to teach  government counsel that his primary  duty is



            to obtain justice, not  to win cases, see Brady  v. Maryland,
                                                  ___ _____     ________



            373  U.S. 83,  87-88  (1963), we  hope  we have  said  enough



            without such draconian action.



                      As to  the sentence, application of    4A1.1 of the



            Sentencing Guidelines yielded criminal history category (CHC)



            I, based on one point assigned for defendant's only countable



            prior  conviction.   However, the  court found CHC  I clearly



            under-represented  the  seriousness  of defendant's  criminal



            history and his recidivism.  Impressed by a "string of zeros"



            in defendant's  pre-sentence report (PSR) indicating a series



            of  past convictions  -- for  disorderly conduct,  attendance



            violations  while in  the  military,  criminal liability  for



            conduct  of  another,   criminal  threatening,  assault,  and



            driving  while intoxicated -- for  which no "points" could be



            assigned under   4A1.1, the  court added 1 point for  each of



            the last four  and bumped  defendant into CHC  III.   Notably



            with respect  to recidivism, each of  these were misdemeanors



            that  occurred a  minimum of  13 years  prior to  the instant



            offense.



                      Section 4A1.3 allows a sentencing court to consider



            uncounted  prior convictions and  other criminal  behavior in


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increasing the CHC5  if "reliable information indicates  that



            the criminal history category does not adequately reflect the



            seriousness of  the defendant's past criminal  conduct or the



            likelihood  that  the defendant  will  commit other  crimes."



            U.S.S.G.   4A1.3.   Its decision  to depart, as  well as  the



            degree  of  departure,  is  entitled to  respect,  given  its



            "special competence," experience, and "superior feel" for the



            case.  United  States v.  Rivera, 994 F.2d  942, at 950,  951
                   ______________     ______



            (1st Cir. 1993) (citing  Williams v. United States, 503  U.S.
                                     ________    _____________



            193, 112 S.Ct. 1112, 1121 (1992));  United States v. Shrader,
                                                _____________    _______



            56 F.3d  288, 292  (1st Cir.  1995).   Once we  determine the



            court  acted  within its  discretion,  our  only question  is



            whether its decision was reasonable and adequately explained.



            Id.
            ___



                      We  first  note  that  defendant  is  incorrect  to



            suggest    that   the   Guidelines   forbid   or   discourage



            consideration  of old  convictions in  a decision  to depart.



            Cf.  Rivera,  994 F.2d  at  948-49  (detailing forbidden  and
            ___  ______


____________________



            5.  The relevant provisions include:



                      (a)   prior   sentence(s)  not   used  in

                      computing  the criminal  history category

                      . . .



                      . . .



                      (e) prior similar adult  criminal conduct

                      not resulting in a criminal conviction.



            U.S.S.G.   4A1.3.



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discouraged  departures).   Likelihood  of  recidivism  is an



            alternative  justification  to  under-representation  of  the
            ___________



            seriousness of defendant's criminal history for a decision to



            depart upward.   U.S.S.G.   4A1.3; Schrader, 56  F.3d at 292.
                                               ________



            The  court  here made  the  latter  finding, based  on  prior



            sentences for similar conduct (1979 assault and 1977 criminal



            threatening), and  serious dissimilar  conduct (1980  DWI and



            1977 criminal  liability for conduct of  another and theft6).



            Where  these considerations are  appropriate to  the decision



            whether to  depart, and defendant's PSR  provides an adequate



            basis, we cannot  substitute our judgment.  United  States v.
                                                        ______________



            Quinones,  26 F.3d 213, 219 (1st Cir. 1994); Rivera, 994 F.2d
            ________                                     ______



            at 952.   See also Williams,  503 U.S. at  205, 112 S.Ct.  at
                      ___ ____ ________



            1121.  However, once the court believes a properly calculated



            CHC  significantly  under-represents  a defendant's  criminal



            history,  the Guidelines direct  the court's  departure quite



            specifically:  the court must find that "defendant's criminal



            history most  closely resembles that of  most defendants with
                    _____________                    ____



            [the] Criminal History Category [the court seeks to impose]."



            U.S.S.G.    4A1.3 (emphasis  added).   If it  were sufficient



            simply to  add points for  conduct excluded from  the initial



            CHC calculation  to arrive at a higher  category, the   4A1.1



            parameters for guiding CHC determination would  be nullified.



                                
            ____________________



            6.  The court  indicated this was robbery.   Although robbery

            was the original indictment, defendant ultimately pled guilty

            to theft.



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The  court's  mere  conclusion  that a  CHC  III  "adequately



            reflects defendant's criminal history" fails to shed light on



            this question.



                      Although   we  accord  "substantial  leeway"  to  a



            sentencing court's determination of the appropriate degree of



            departure,



                      this freedom does  not relieve [it]  from

                      explaining its ultimate  decision of  how

                      far to depart.   Merely explaining why  a

                      departure was made  does not fulfill  the

                      separate   requirement  of   stating  the

                      reasons   for  imposing   the  particular
                                                     __________

                      sentence.



            Quinones,  26 F.3d  at 219  (emphasis added)  (quoting United
            ________                                               ______



            States v.  Rosales, 19 F.3d  763, 770 (1st Cir.  1994)).  See
            ______     _______                                        ___



            also Rivera,  994 F.2d at 946, 949-50.  Because we are unable
            ____ ______



            to evaluate  responsibly the reasonableness of  the extent of



            the court's departure  absent explication,  which we  observe



            might  include at least an  indication of why  a one category



            increase is inadequate, we will  follow our past practice  of



            ordering a limited  remand for clarification  while retaining



            appellate jurisdiction.  See Quinones, 26 F.3d at 219-20.
                                     ___ ________



                      We affirm  defendant's  conviction and  remand  for
                      ___________________________________________________



            further proceedings with respect to sentence.
            _____________________________________________


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