U.S. v. Joost

• Decision Date: 03 December 1997
• Docket Number: No. 97-1519,97-1519
• Citation: 133 F.3d 125
• Parties: 48 Fed. R. Evid. Serv. 764 UNITED STATES of America, Appellee, v. Robert M. JOOST, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 125

133 F.3d 125

48 Fed. R. Evid. Serv. 764

UNITED STATES of America, Appellee, v. Robert M. JOOST, Defendant, Appellant.

No. 97-1519.

United States Court of Appeals, First Circuit.

Heard Dec. 3, 1997.

Decided Jan. 9, 1998.

William C. Dimitri, by appointment of the court, Providence, RI, with whom Robert M. Joost, pro se, was on brief, for appellant.

Margaret R. Curran, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, and Kenneth P. Madden, Assistant United States Attorney, Providence, RI, were on brief, for the United States.

Before SELYA, STAHL and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

This appeal marks our second encounter with the government's accusation that defendant-appellant Robert M. Joost, a previously convicted felon, illegally possessed a firearm in violation of 18 U.S.C. § 922(g)(1). ¹ A panel of this court erased Joost's initial conviction on this charge because the trial court failed to give an entrapment instruction. See United States v. Joost, 92 F.3d 7, 13-14 (1st Cir.1996) (Joost I ). A new trial before a new judge and jury, properly instructed on entrapment, yielded the same result. This appeal followed.

We recounted the underlying facts in some detail in Joost I, 92 F.3d at 9-11, and it would be pleonastic to repeat them here. For context's sake, it suffices to note that Joost's present difficulties arose out of his relationship with two members of the Rhode Island State Police, Steven O'Donnell and Joseph DelPrete, who posed as petty thieves while investigating a counterfeiting operation. The relationship centered around the delivery of fake casino tokens by Joost to the undercover officers in exchange for cash. In the course of their dealings, Joost proposed several other criminal opportunities to the officers (including the robbery of an armored truck). At a later date, the officers requested that Joost provide a firearm for their use in a stick-up. After some prodding, Joost supplied a .25 caliber pistol.

Joost's entrepreneurship led to his arrest and indictment on several charges, including conspiracy to violate the Hobbs Act (a charge that derived from his role in planning the armored truck robbery) and the instant felon-in-possession charge. On Joost's motion, the charges were severed and the felon-in-possession count was tried alone. ²

The first felon-in-possession trial was nullified by the first appeal, and need not concern us. At the second trial, Joost elected to proceed pro se. He staked his defense on a claim that O'Donnell and DelPrete had entrapped him into committing the offense. The jury bought none of it. On appeal, Joost, aided by the oral advocacy of appointed counsel, advances numerous assignments of error. We discuss seven of them, rejecting the remainder without editorial comment.

1. Joost stipulated that he had been convicted of a felony prior to the date of the alleged felon-in-possession offense. During the trial, he testified in his own defense. On cross-examination, the district court permitted the government to show the nature of the prior felony, which the government paraphrased as a "conspiracy to injure, oppress, threaten and intimidate a citizen of the United States in the free exercise and enjoyment of a right and privilege secured to him by the laws and Constitution of the United States, death resulting." See 18 U.S.C. § 241. Touting our decision in United States v. Tavares, 21 F.3d 1 (1st Cir.1994) (en banc), Joost assigns error.

In Tavares, we held that when a defendant who has been charged as a felon in possession offers to stipulate to the existence of an earlier felony conviction, the government ordinarily cannot adduce proof of the nature--as opposed to the fact--of that conviction for the purpose of establishing the status element of the offense. See Tavares, 21 F.3d at 4-5; accord Old Chief v. United States, 519 U.S. 172, ---- - ----, 117 S.Ct. 644, 654-56, 136 L.Ed.2d 574 (1997). In this case, any Tavares-based objection was thrice waived.

Before trial, Joost articulated an objection which the district court understandably regarded as the functional equivalent of a general motion in limine aimed at circumscribing the government's use of his prior convictions. Judge Torres heard arguments on this motion after jury empanelment but before the taking of any evidence. Solicitous of the rights of the pro se defendant, the judge specifically inquired whether Joost sought to press an objection to the evidence that he now challenges. Joost demurred, stating: "I think I can't fault the Government for using that." Having thus conceded the point, Joost cannot now change course, at least without a compelling reason. Cf. United States v. Coady, 809 F.2d 119, 121 (1st Cir.1987) (refusing to permit counsel to deviate from his own prior representations to the trial court). Waiver also occurred when, during his direct examination, Joost voluntarily undertook to describe the prior felony to the jury, thereby inviting the government's subsequent cross-examination. A party who opens a door cannot be heard to complain that the adverse party strolled through the doorway. See Gill v. Thomas, 83 F.3d 537, 541 (1st Cir.1996); see generally Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 101 (1st Cir.1997) (discussing doctrine). Finally, Joost did not register a contemporaneous objection when the prosecution purposed to describe the conviction. This, too, constitutes a waiver. See United States v. Griffin, 818 F.2d 97, 99-100 (1st Cir.1987).

Based on this history, it is crystal clear that Joost's own conduct precludes him from challenging on appeal the government's description of his prior conviction. Nor can we sweep these repeated procedural defaults under the rug simply because Joost was acting without the benefit of counsel. A defendant in a criminal case is entitled to serve as his own attorney, but exercising a right of self-representation does not absolve the actor from complying with relevant procedural rules. See Faretta v. California, 422 U.S. 806, 835 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975); Eagle Eye Fishing Corp. v. United States Dep't of Commerce, 20 F.3d 503, 506 (1st Cir.1994).

We hasten to add that, even were we to put these procedural defaults to one side, the government's mention of the nature of Joost's conviction during cross-examination did not contravene Tavares. Tavares stands for the general proposition that, when the prosecution proffers evidence of a predicate crime solely to satisfy the status element of a felon-in-possession charge and the defendant stipulates (or offers to stipulate) to the fact of the conviction, the nature of the conviction is ordinarily irrelevant and often unduly prejudicial. However, the Tavares rule does not apply if the nature of the conviction is relevant for an independent purpose. This is such a case.

Fed.R.Evid. 609(a) provides in pertinent part that, when the accused testifies in a criminal case, evidence that he has been convicted of a serious crime (i.e., a crime "punishable by death or imprisonment in excess of one year") shall be admissible to impeach his credibility "if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." We have specifically endorsed the use of prior convictions for such purposes in post-Tavares felon-in-possession cases. ³ See, e.g., United States v. Powell, 50 F.3d 94, 102 (1st Cir.1995); United States v. Tracy, 36 F.3d 187, 191-92 (1st Cir.1994); see also Tavares, 21 F.3d at 6 ("[I]n some cases evidence concerning the nature of the prior conviction will be admissible for impeachment or other reasons, despite its lack of probative value on the prior conviction element of the crime."). So it is here: the nature of the conviction was relevant for the independent purpose of impeaching the credibility of the testifying defendant, and therefore was admissible.

2. Joost next contends that the lower court erred in admitting evidence of his Joost II conviction for conspiracy to rob an armored truck in violation of the Hobbs Act, 18 U.S.C. § 1951. His point is that, because both the Hobbs Act and felon-in-possession charges arose out of the same overall course of events, the jury should not have been allowed to hear that another jury previously had rendered a guilty verdict on the Hobbs Act charge (and, by implication, had found troopers O'Donnell and DelPrete credible). Here again, the point is procedurally defaulted. Although Joost sought unsuccessfully to have his Hobbs Act conviction excluded via his pretrial motion in limine, he then failed to object when the prosecution brought the matter up in a live trial context. Merely making an unsuccessful motion in limine to exclude evidence is insufficient to preserve a claim of error; the protesting party ordinarily must revivify his opposition at the time the evidence is offered. See Gill, 83 F.3d at 541 (concluding that a party "cannot rely solely on his in limine objection to preserve the evidentiary issue for appeal"); Griffin, 818 F.2d at 105 (stressing that evidentiary objections normally are preserved for appeal only if the court rules "in the actual setting of the trial"); see also United States v. Noah, 130 F.3d 490, 496 (1st Cir.1997).

In all events, we descry no error. The trial court, in the exercise of the substantial discretion that Fed.R.Evid. 609 confers, supportably determined that the probative value of the Hobbs Act conviction outweighed its potentially prejudicial effect. Hence, the conviction was admissible for impeachment purposes. ⁴

3. Joost's protests regarding the admission of testimony as to the reason he provided the firearm are unavailing. Having elicited much of the testimony himself, and not having objected contemporaneously to the rest, Joost cannot now be heard to challenge its admission on appeal. In any event, evidence related to Joost's motive for...