U.S. v. Pratt

• Decision Date: 03 June 2009
• Docket Number: No. 05-2624.,05-2624.
• Citation: 568 F.3d 11
• Parties: UNITED STATES of America, Appellee, v. Gary C. PRATT, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

568 F.3d 11

UNITED STATES of America, Appellee, v. Gary C. PRATT, Defendant, Appellant.

No. 05-2624.

United States Court of Appeals, First Circuit.

Heard January 11, 2007.

Decided June 3, 2009.

Judith H. Mizner, Assistant Federal Public Defender, for appellant.

Terry L. Ollila, with whom Thomas P. Colantuono, United States Attorney, and Aixa Maldonado-Quiñones, Assistant United States Attorney, were on brief, for appellee.

Before BOUDIN and LIPEZ, Circuit Judges, and SHADUR,^* District Judge.

LIPEZ, Circuit Judge.

We must revisit this case, our earlier decision having been vacated and the case remanded by the United States Supreme Court. Pratt v. United States, ___ U.S. ___, 129 S.Ct. 991, 173 L.Ed.2d 284 (2009) (mem.).

Gary Pratt was convicted of being a felon in possession of a handgun under 18 U.S.C. § 922(g)(1) and sentenced as an armed career criminal pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). On appeal, he challenged his conviction and sentence, and we affirmed both. United States v. Pratt, 496 F.3d 124 (1st Cir.2007). With respect to his sentence, we rejected Pratt's argument that his prior conviction under New Hampshire's criminal escape statute did not count as a "violent felony" conviction for purposes of the ACCA. We based that decision on an earlier case, United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004), in which we had concluded that all New Hampshire escape crimes are "violent" for purposes of the Career Offender Guideline enhancement, whose definition of a predicate "crime of violence" is almost identical to § 924's definition of "violent felony." Pratt, 496 F.3d at 130; U.S.S.G. §§ 4B1.1, 4B1.2. Subsequently, the Supreme Court decided in Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), that criminal escapes of the kind committed by the defendant in Winn are not crimes of violence for ACCA sentencing purposes. Because our first decision in this case had relied upon Winn, which is no longer good law, the Supreme Court granted certiorari in this case, vacated, and remanded to us for reconsideration of the ACCA sentence.

Upon reconsideration, we again affirm Pratt's sentence as an armed career criminal. We determine that, unlike the failure-to-report crime at issue in Chambers, Pratt's escape from secure custody was a crime of violence. The rest of our decision, which relates to Pratt's argument that the evidence was insufficient to support the verdict because the government failed to introduce into evidence a stipulation as to two elements of his offense, and the concurring opinion on the stipulation issue, are unchanged.

I.

We state the facts "as the jury could have found them, drawing all inferences in the light most consistent with the jury verdict." United States v. Milkiewicz, 470 F.3d 390, 392 (1st Cir.2006). Immediately following his release from prison, Pratt lived on and off with Melody Isham-Pilotte, who purchased a .357 caliber Glock semiautomatic pistol at his instruction and filled out the paperwork as the purchaser. Pratt then kept the gun with him and used it on several occasions to fire at signs and beer cans. At one point, after crashing Isham-Pilotte's car and leaving the scene of the accident, he called to tell her that he had left the gun in the trunk of the car. Isham-Pilotte was able to retrieve the gun.

Eventually, Pratt was arrested for failure to appear in court on an unrelated matter, and, after an investigation uncovered the events described above, he was charged with being a felon in possession of a firearm. His indictment stated that the government intended to seek a sentencing enhancement under the ACCA, which provides a fifteen-year mandatory minimum term for a defendant with three prior violent felonies or serious drug offenses.

Before trial, the parties filed a stipulation agreeing that the handgun had been transported in interstate or foreign commerce. The stipulation also identified five previous crimes for which Pratt had been convicted. With respect to those crimes, the stipulation stated that "the jury should be instructed by the Court that `the defendant agrees he was previously convicted of a crime punishable by imprisonment for a term exceeding one year' without further elaboration or explanation." See infra Section II.A.

At trial, the prosecution told the jury in its opening statement that the gun in question had traveled in interstate commerce and that Pratt previously had been convicted of a crime punishable by imprisonment for more than one year. However, the stipulation providing the evidentiary support for this statement was never presented to the jury as evidence prior to the close of evidence, and the prosecution did not introduce other evidence that the gun had traveled in interstate commerce or that Pratt was a convicted felon.

After the close of evidence, the court issued its instructions to the jury. It first provided a general instruction on stipulations:

During the course of trial, you were told that the government and the defendant agreed or stipulated to certain facts. This simply means that both sides accept those facts to be true. Because there is no disagreement regarding those facts, there was no need for either side to introduce evidence relating to them. You may accept as true those facts to which the government and the defendant have stipulated.

With respect to the charged offense, the court instructed the jury that, under 18 U.S.C. § 922(g)(1), the government must prove that: (1) the defendant had been convicted of a felony (which it defined as a "crime punishable by imprisonment for a term exceeding one year"); (2) the defendant possessed a firearm; and (3) the firearm had traveled in interstate commerce. It then explained that Pratt

has stipulated or agreed that . . . he was convicted of an offense punishable by imprisonment for a term exceeding one year. Because there is no disagreement regarding that fact, there was no need for the government to introduce any evidence relating to it. As I mentioned earlier, you may accept as true the facts to which the government and the defendant have stipulated or agreed.

The court also stated that Pratt

has stipulated that the Glock semi-automatic pistol at issue in this case traveled across the state boundary line at some time after its manufacture. Because the parties do not disagree as to that fact, there was no need for the government to introduce any evidence relating to it and you may accept as true the fact that the Glock semi-automatic pistol traveled in or affected interstate commerce.

Pratt did not object to these instructions. The jury returned a guilty verdict.

During his sentencing hearing, Pratt objected that he did not qualify for an enhanced sentence under the ACCA because his prior offenses did not include three violent felonies. The court rejected his objections and imposed the statutory minimum sentence of fifteen years. This appeal ensued.

II.

A. Stipulation to Essential Elements

To establish a violation of 18 U.S.C. § 922(g)(1), the government must prove three elements beyond a reasonable doubt: (1) the defendant possessed a firearm; (2) the firearm had traveled in interstate commerce; and (3) the defendant had been convicted of a felony prior to his possession of the firearm. Although Pratt did not claim at trial that his stipulation relating to the interstate commerce element and the prior conviction element was not introduced into evidence, he now challenges the sufficiency of the evidence to support his conviction on those elements. We review an unpreserved challenge to the sufficiency of the evidence only for plain error, United States v. Peña-Lora, 225 F.3d 17, 26 (1st Cir.2000), and will reverse only if the conviction would result in a "clear and gross injustice," United States v. Bello-Perez, 977 F.2d 664, 668 (1st Cir. 1992).

Technically, the court erred by first presenting the subject matter of the stipulation to the jury in its jury instructions, after the close of evidence. Ordinarily, unless there is a contrary agreement between the parties, district courts should ensure that a stipulation, or the content thereof, is presented to the jurors prior to the close of evidence. This presentation may take various forms: the stipulation itself could be entered into evidence, the court could read the stipulation into evidence, or the parties could agree that one of them will publish the stipulation to the jury. The presentation will often include an explanation by the court that the stipulation means that the government and the defendant accept the truth of a particular proposition of fact, and, hence, there is no need for evidence apart from the stipulation itself.

The concurrence suggests that "no settled rule exists as to how the jury is to be informed of a stipulation."¹ We do not disagree. In fact, we have suggested a variety of ways in which a jury could be informed of the content of a stipulation. However, in our view, there is a settled rule that the content of a stipulation must be published to the jury prior to the close of evidence. That settled rule is confirmed by a review of the pattern jury instructions from the circuits. For example, the Pattern Criminal Jury Instructions for the District Courts of the First Circuit state, with respect to stipulations:

The evidence in this case includes facts to which the lawyers have agreed or stipulated. A stipulation means simply that the government and the defendant accept the truth of a particular proposition or fact. Since there is no disagreement, there is no need for evidence apart from the stipulation. You must accept the stipulation as fact to be given whatever weight you choose.

Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 2.01 (1998), available at http://www.med. uscourts.gov/practices/crpji.97nov.pdf (last visited May 14, 2009) (emphasis added).² Other circuits similarly...