U.S. v. Hansen, 03-1331.

• Decision Date: 13 January 2006
• Docket Number: No. 03-1331.,No. 05-1414.,03-1331.,05-1414.
• Parties: UNITED STATES of America, Appellee, v. Paul James HANSEN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 92

434 F.3d 92

UNITED STATES of America, Appellee, v. Paul James HANSEN, Defendant, Appellant.

No. 03-1331.

No. 05-1414.

United States Court of Appeals, First Circuit.

Heard November 9, 2005.

Decided January 13, 2006.

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Rosemary Curran Scapicchio for appellant.

Vijay Shanker, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney, and John T. McNeil, Assistant United States Attorney, were on brief, for appellee.

Before SELYA and LYNCH, Circuit Judges, and SMITH,^* District Judge.

SMITH, District Judge.

Paul James Hansen was convicted after a jury trial in the United States District Court for the District of Massachusetts for his role in stealing a minivan and his responsibility for the armed robbery and killing that followed. He now appeals both his conviction and sentence, bringing no less than eleven claims of error. After careful review, we affirm.

I. BACKGROUND

We begin with an overview of the facts of this case, in the light most favorable to the Government as the prevailing party. The unfortunate friendship of Hansen and Brendan Brennan ("Brennan") spawned from their childhood association with the Boys' Club in Charlestown, Massachusetts, when the two were about twelve years old. During their teen years, they became friendly with an older man from the neighborhood, Scott Sheehan ("Sheehan"), who made money by robbing banks. Sheehan instructed his two young apprentices about various aspects of the criminal trade, including the finer points of stealing cars. Under Sheehan's tutelage, the young men learned, for example, that to prevent police detection when stealing vehicles that were to be used in robberies, they should wear certain clothes such as nylon pants, long-sleeved shirts, hats, and gloves.

The pair wasted no time putting their newly acquired skills to use — between June, 1994 and the summer of 1996, Brennan was involved in stealing approximately 100 cars, with Hansen participating in roughly 65-70 of these thefts.¹ Brennan's budding criminal career hit bumps in the road, however, when he was arrested and convicted of four different auto thefts in 1995 and 1996.

While Brennan was incarcerated for one of these auto thefts, Hansen continued to mingle with the wrong crowd, and eventually learned of an upcoming criminal opportunity from a Charlestown acquaintance named John Fidler ("Fidler"). On July 25, 1996, Hansen met up with Brennan, who had just been released from jail, and told him that Fidler and two other individuals from Charlestown, Dennis Bird ("Bird") and Billy McKillop ("McKillop"), were planning to rob an armored truck and wanted Hansen to help out by stealing a minivan. (A minivan was the vehicle of choice for such a venture because the sliding doors and removable seats conceal the robbers and allow for easy exit during the heat of a robbery.) According to Brennan, Fidler and his crew were apparently in the process of replacing another Charlestown group that robbed armored trucks while that group was incarcerated for a robbery in Hudson, New Hampshire, which had resulted in the death of two guards.

The next day, Hansen, Fidler, Bird, and McKillop unsuccessfully tried to pilfer a minivan. Having had difficulty stealing these types of vehicles in the past, Hansen asked the more adroit Brennan to lend a hand, with the understanding that both Hansen and Brennan would be compensated for the theft. Brennan understood that the minivan to be stolen was to be used in an armored truck robbery, firearms would be used during the robbery, and he and Hansen would earn more money if the robbery was successful.

On the evening of July 27, 1996, Hansen and Brennan donned nylon pants, long-sleeved shirts, and gloves and trolled the streets of Charlestown for a suitable vehicle. Before long, the pair noticed an attractive white minivan with tinted windows. While Hansen kept watch, Brennan broke into the vehicle and started the engine. After stashing the stolen minivan in Somerville, Massachusetts, Hansen and Brennan showed Fidler and Bird their quarry.

Four days later, on July 31, 1996, a Dunbar armored truck driven by Michael Day ("Day") and Edward Kubera ("Kubera") parked at the Twin City Plaza in Somerville to deliver currency to a Star Market. Kubera unloaded boxes of coins while Day remained in the truck and watched for suspicious activity. While they were working, a white minivan approached the armored truck with tires squealing. An individual dressed in a ski mask and gloves exited the minivan, pointed a handgun at Day's head, and instructed him to lie on the floor of the truck. At the same time, another masked man wearing gloves and dark clothes approached the armored truck with an assault rifle and brutally shot Kubera in the chest. The second robber climbed over Day to enter the armored truck, collected approximately $3,725, and took Day's firearm. The armed robbers escaped as quickly as they had arrived, with the entire robbery lasting only a few minutes.² An hour later, Kubera died.

The resulting investigation produced statements by Brennan explaining Hansen's role in the robbery,³ as well as a conversation recorded by Brennan's father, Stephen Brennan, in which Hansen admitted that Fidler had asked him to steal a vehicle. Hansen was indicted on June 14, 2001 (nearly five years after the heist), on charges that he (1) aided and abetted robbery affecting commerce, in violation of 18 U.S.C. §§ 2 and 1951(a); (2) conspired to affect commerce by means of robbery, in violation of 18 U.S.C. § 1951(a); (3) used a firearm during a crime of violence and thereby caused murder, in violation of 18 U.S.C. §§ 2, 924(c), and 924(j); and (4) made a false material declaration before a grand jury, in violation of 18 U.S.C. § 1623. At trial, the Government's case-in-chief was primarily based upon Brennan's testimony, which largely consisted of the factual account set forth above. The jury found Hansen guilty on all counts.

Hansen was sentenced on October 9, 2002. At the sentencing hearing and in a subsequently filed Memorandum dated February 14, 2003, the district court explained its findings. The court grouped Counts 1, 2, and 4 together and determined a base offense level of 43 using the first degree murder guideline. See U.S.S.G. § 2A1.1.⁴ The court then departed downward to an offense level of 33 based upon Hansen's state of mind. See U.S.S.G. § 2A1.1 cmt. n. 1 ("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."). A two-level enhancement for obstruction of justice was added because Hansen testified falsely before the grand jury, resulting in a total offense level of 35. See U.S.S.G. § 3D1.2(c). Because Hansen had a criminal history category of VI, the district court calculated Hansen's guideline sentencing range to be 292 to 365 months. The court sentenced Hansen to a 352-month term of imprisonment (292 months on counts 1, 2, and 4 — the grouped counts — and a consecutive term of 60 months on count 3). Five years of supervised release and a restitution payment of $3,775 were also imposed. These appeals followed.⁵

II. DISCUSSION

Hansen appeals both his conviction and sentence, raising no less than eleven points of error. We address each challenge in turn, taking the sentencing issue first.

A. Booker Sentencing Issue

Hansen's first and main line of attack is the fact that the district court sentenced him under the prior mandatory guideline regime. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Despite his claim to the contrary, however, Hansen did not argue to the district court that the guidelines were unconstitutional or that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); therefore, his Booker claim is not preserved and thus we review for plain error. See United States v. Antonakopoulos, 399 F.3d 68, 77 (1st Cir.2005). Under plain error review, Hansen must show "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001).

Hansen is able to meet the first two elements because he was sentenced under a mandatory guideline regime. See Antonakopoulos, 399 F.3d at 77. The question is whether he is able to show a reasonable probability "that the sentencing court, freed of the shackles forged by mandatory guidelines, would have fashioned a more favorable sentence." United States v. Guzman, 419 F.3d 27, 32 (1st Cir.2005). While we have said that we are not "overly demanding as to proof of probability," United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.2005), the defendant "must point to specific indicia" that reasonable probability exists. United States v. Sanchez-Berrios, 424 F.3d 65, 80 (1st Cir.2005).

To support his claim that it is reasonably probable that sentencing under a non-mandatory system would have yielded a different result, Hansen points to the following statement in the district judge's February 14, 2003 sentencing memorandum:

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...