U.S. v. Pakala

• Decision Date: 12 June 2009
• Docket Number: No. 07-2092.,07-2092.
• Citation: 568 F.3d 47
• Parties: UNITED STATES of America, Appellee, v. John PAKALA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

568 F.3d 47

UNITED STATES of America, Appellee, v. John PAKALA, Defendant, Appellant.

No. 07-2092.

United States Court of Appeals, First Circuit.

Heard December 4, 2008.

Decided June 12, 2009.

Robert M. Greenspan, for appellant.

Sandra S. Bower, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before TORRUELLA, STAHL, Circuit Judges, and GARCÍA-GREGORY,^* District Judge.

TORRUELLA, Circuit Judge.

Defendant-appellant John Pakala appeals his conviction and resulting sentence for possessing and selling stolen firearms. After careful consideration, we affirm.

I. Factual and Procedural Background

At trial, Robert Boudrow, a deacon and pastoral counselor of a church in Revere, Massachusetts, testified that on June 14, 2003, he hired Pakala to help with church renovations. Boudrow, who served as one of the government's main witnesses, invited Pakala to stay at his house in Chelsea for a few days because Pakala appeared to be living in his truck. On Wednesday, June 18, 2003, after working at the church, the two men returned to Boudrow's home where Boudrow observed that two gun cases stored in his bedroom closet, which contained five guns, appeared undisturbed. That afternoon, Boudrow left for work while Pakala remained in the Boudrow residence, but when Boudrow returned home around 9:00 p.m., Pakala and the guns were gone. Boudrow testified that in looking for Pakala, he smelled cigarette smoke near the bedroom closet that contained the gun cases. While neither Boudrow nor his wife smoked, Boudrow had observed Pakala smoke. Boudrow also noticed that keys to the gun cases, a black suitcase, and some other items were missing. Boudrow then called the police to report the stolen items. Pakala never returned to the Boudrow residence even though he left behind his truck and dog.

Pauline Hassett, a friend of Pakala's, also testified for the government, as a cooperating witness.¹ Sometime in mid-June 2003, Pakala told Hassett that he had secured a job at a church in Revere and was staying in the home of a "church guy." Pakala informed Hassett that he had seen several guns in an upstairs bedroom and planned to steal them after he was paid at the end of the week. Hassett testified that on Wednesday, June 18, Pakala told her that he had stolen the guns; she recalled the day because "it was raining and they didn't do no painting and stuff that day." Over Pakala's objection, the government introduced two weather reports that showed that it had rained on Wednesday, June 18, 2003. The weather reports were admitted into evidence as Exhibits 14 and 15 but were not published to the jury at trial.

On that day, Pakala and Hassett planned to buy drugs but got into a disagreement over who would pay and separated. Hassett alone procured drugs and returned to her apartment in Chelsea around noon. At 5:00 p.m., Pakala appeared at her apartment with a wad of cash and told her he alone had stolen and then sold five guns with a mutual friend known as "Porky." Hassett and Pakala left her apartment, bought more drugs, and stayed at a hotel for one night.

A few weeks later, after a dispute during which Pakala threw a coffee table at Hassett, hitting her on the head, Hassett contacted the police and was taken to the hospital. Once there, in addition to discussing the altercation, Hassett told the police about the stolen firearms. Officer Chris Borum confirmed at trial that Hassett told him that Pakala had bragged to her that he and another man had sold five guns. Hassett gave the police a black suitcase which Pakala had left on her back porch, an item among those taken from the Boudrow residence on June 18, 2003.

Pursuant to a grant of immunity, Angel Acevedo offered testimony that he and a group of his friends bought guns from "Porky," later identified as Angel Gonzáles, and a "tall, skinny, white man," identified by Acevedo as Pakala, on Wednesday, June 18, 2003. Police apprehended several of the five firearms. Pakala's case later was severed from Gonzáles's.

Pakala ultimately was tried on two counts—(1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and (2) possession and sale of stolen firearms, in violation of 18 U.S.C § 922(j). Prior to trial, on June 1, 2004, Pakala filed a motion to suppress. The motion was denied on August 1, 2005, and a trial date was set for September 26, 2005. On August 31, 2005, he requested a continuance of the trial date because of a scheduling conflict, and the district court permitted the motion by electronic endorsement. Defense counsel filed a second motion to continue on November 7, 2005, in order to seek the transcripts from Gonzáles's trial. The next day, the district court allowed the motion by electronic endorsement with the trial continued to January 20, 2006. One week before the trial date, Pakala moved to dismiss the indictment on speedy trial grounds. The district court denied the motion.

The jury convicted Pakala on both counts on February 2, 2006. Pakala's pre-sentence report ("PSR") found that Pakala was subject to the Armed Career Criminal Act ("ACCA") based on three prior convictions for crimes of violence—an attempted burglary in Nevada and two counts of third degree burglary of an unoccupied structure in Florida under Fla. Stat. § 810.02(4)(a). Pakala's total offense level of 33, combined with a criminal history category of VI, resulted in a Guidelines Sentencing Range ("GSR") of 235 to 293 months imprisonment with Pakala subject to a statutory minimum of 180 months imprisonment.

Prior to sentencing, Pakala challenged the use of his two Florida convictions for purposes of the ACCA classification. He argued that the Florida statute was "broader" than a "generic" burglary and that the specific section of the statute to which he pled guilty did not warrant treatment as a violent felony. He also claimed that the court could not rely on complaint applications or police reports in determining whether Pakala had committed a violent felony.² Pakala also objected to the PSR on the grounds that he deserved a downward departure because his criminal history category overstated the seriousness of his criminal history, was the result of long-term substance abuse and a bipolar disorder, and did not show violence. He further argued that he was subjected to extreme "mental and physical distress" and that he had been denied adequate medical and psychological treatment while incarcerated. The government filed a written response which opposed Pakala's arguments³ and urged the court to impose a 250-month sentence, about halfway between the low end and the midpoint of the applicable GSR.

At sentencing, the government stated that it had obtained the Florida information (the "Information") to which Pakala pled guilty and provided it to defense counsel. For each of the two Florida offenses, the Information specifically alleged "that the defendant did unlawfully enter or remain in a structure, to wit, a building or the curtilage thereof," and identified the specific address of the property. Defense counsel did not claim that the court had insufficient evidence to determine to which portion of the statute Pakala pleaded guilty but, rather, insisted that the crime did not constitute a violent felony because it did not involve an assault or a dangerous weapon. The district court overruled Pakala's objections, classified him as an Armed Career Criminal, and sentenced him to 235 months imprisonment, the lowest sentence within the GSR. Pakala now appeals his conviction and his sentence.

II. Discussion

Pakala raises four issues on appeal. We discuss each in turn.

A. Admission of Weather Reports

Pakala first contends that the district erred by admitting two weather reports into evidence, Exhibits 14 and 15, which showed that it was raining on Wednesday, June 18, 2003, in Boston and the surrounding area. As Pakala adequately preserved his objection to the weather reports at trial, we review the "trial court's rulings admitting or excluding evidence only for abuse of discretion." United States v. Gobbi, 471 F.3d 302, 311 (1st Cir.2006).

Pakala first contends that the weather reports were never properly admitted, and thus it was reversible error for the prosecution to reference them in its closing arguments and to make the reports available to the jury. See, e.g., Virgin Islands v. Joseph, 685 F.2d 857, 863 (3d Cir.1982) (finding plain error when two incriminating documents, including a signed written confession, were inadvertently provided to the jury). However, the record demonstrates that the reports were, in fact, properly admitted. When the government offered the documents, the court, after hearing from both parties, stated:

THE COURT: Okay. You know, sometimes you should be careful what you wish for. I am going to let it in and see what happens ...

[THE GOVERNMENT]: Is that for both fourteen and fifteen, your Honor?

THE COURT: Yes.

(emphasis added). In addition, Pakala argues that the district court committed error because the weather reports were never published to the jury during trial. But there was no requirement for the government to do so after they were admitted, and Pakala points to nothing to suggest otherwise.

Pakala also contends that the weather reports were not admissible because their probative value was substantially outweighed by their prejudicial effect on the jury. Pakala argues that because there was no evidence establishing that the work set for Pakala that day was outdoors, rather than indoors, the fact that it was raining on Wednesday, June 18, 2003, could not be used to establish that Pakala did not work that day. Thus, Pakala argues that the weather reports were irrelevant and, moreover, prejudicial, as they improperly bolstered the credibility of Hassett. Pakala contends that the government "hammer[ed] away at the evidence" and "harp[ed]" on the reports in its closing...