USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2223
UNITED STATES,
Appellee,
v.
PATRICK TRACY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Jay B. McCloskey, United States Attorney, and Nicholas M. Gess,
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Assistant United States Attorney, were on brief for appellee.
David R. Beneman, with whom Levenson, Vickerson & Beneman was on
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brief for appellant.
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September 28, 1994
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CAMPBELL, Senior Circuit Judge. Patrick W. Tracy,
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defendant-appellant, was indicted in a single count as being
a felon in possession of a firearm in violation of 18 U.S.C.
922(g)(1) (1988).1 Tracy pleaded not guilty and not
guilty only by reason of insanity. Following a joint motion
for a competency examination, a psychologist with the federal
prison system diagnosed Tracy, a Vietnam veteran, as
suffering from Post-Traumatic Stress Disorder.2
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1. 18 U.S.C. 922(g)(1) states:
(g) It shall be unlawful for any person
(1) who has been convicted in any court
of a crime punishable by imprisonment for
a term exceeding one year[]
to ship or transport in interstate or
foreign commerce, or possess in or
affecting commerce, any firearm or
ammunition; or to receive any firearm or
ammunition which has been shipped or
transported in interstate or foreign
commerce.
2. Post-Traumatic Stress Disorder is an anxiety disorder
whose "essential feature . . . is the
development of characteristic symptoms
following a psychologically distressing
event that is outside the range of usual
human experience. . . . [S]uch common
experiences as simple bereavement,
chronic illness, business losses, and
marital conflict" will not trigger [Post-
Traumatic Stress Disorder]; classic
examples of events which will induce the
syndrome include natural disasters,
military combat, torture, and rape. . . .
. . . The syndrome's symptoms
include insomnia, exaggerated startle
Nevertheless, he reported that Tracy was competent to stand
trial. Tracy was tried by jury in the United States District
Court for the District of Maine. The jury returned a guilty
verdict. The district court, pursuant to 18 U.S.C.
924(e)(1) (1988), sentenced Tracy to 312 months imprisonment
to be followed by five years of supervised release. Tracy
appeals from both the conviction and the sentence. We
affirm.
I.
I.
The evidence at trial indicated the following. At
approximately 2:00 p.m. on May 18, 1991, Patrick Tracy
entered a Shaw's Supermarket in Saco, Maine, and forced store
employees at gunpoint to fill a black, gym bag with money.
Tracy then took the gun and the bag of money and left the
store. A store employee, Mark Dubay, observed Tracy get into
a small, blue station wagon parked no more than thirty feet
from the store. Mr. Dubay read the license plate number,
observed the direction in which the car headed, and called
the police.
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response, feelings of guilt, loss of
appetite and of weight, avoidance of
reminders of the traumatic event,
fearfulness, and nightmares and
flashbacks.
Debra A. Abbott et al., Developments in Maryland Law, 1986-
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87, 47 Md. L. Rev. 861, 881 n.2 (1988) (citations omitted).
__
-3-
While on patrol in a cruiser, Sergeant Bradley Paul
and Officer Louis McAuliffe of the Saco Police Department
were informed by radio of the Shaw's Supermarket robbery.
The dispatcher provided them with the getaway car's
description, license plate number, and direction of travel.
As the officers proceeded towards the scene, they observed
heading towards them a two-tone blue 1984 Chevrolet, with
Maine license registration 780 82X, that fit this
description. The officers pursued at high speed.
During the chase, Sergeant Paul saw Tracy extend
his left arm out the window and throw a large black object
over the roof of the car. Officer McAuliffe identified the
object as a firearm, and, by radio communication, instructed
another pursuing police officer, Michael Carrier, to retrieve
the weapon. At the area identified by Officer McAuliffe,
Carrier found the hand grip of the firearm, a Ruger long
barrel .45 caliber revolver, implanted in a utility pole.
The revolver's frame was located in the grass about eight
feet to the right of the pole.
In the meantime, Sergeant Paul and Officer
McAuliffe continued their pursuit. Eventually, the Chevrolet
came to a stop. Tracy exited the car and began to run. The
police pursued on foot. After a short chase, Tracy stopped
running. Sergeant Paul and Officer McAuliffe subdued Tracy,
placed him under arrest, walked him back to their cruiser,
-4-
and read him his Miranda rights. A search of the Chevrolet
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revealed an open, black, Reebok gym bag filled with cash on
the right, front seat. A small, orange Shaw's Supermarket
zipper bag was later discovered at the bottom of the gym bag.
Robbery of the Shaw's Supermarket was not Tracy's
first such transgression. The instant indictment listed
seven prior convictions: (1) assault with a shotgun on July
6, 1977, (2) assault with intent to murder on December 18,
1980, (3) assault by means of a handgun on December 18, 1980,
(4) assault by means of a handgun on December 18, 1980, (5)
armed robbery on December 18, 1980, (6) carrying a firearm in
a vehicle without a license on December 11, 1987, and (7)
receiving a stolen firearm on December 11, 1987. Not
included in the indictment were other prior convictions for
assault and battery on a police officer on September 25,
1979, uttering a false prescription on September 24, 1984,
and assault and battery on a police officer, also on
September 24, 1984.
At trial, Tracy testified at length about his
experiences in the military and as an infantry soldier in
Vietnam. He also described his life after he was honorably
discharged from the military in November 1970. Tracy told
the jury that, after his discharge, he did not have a steady
job, and, with a few exceptions, had difficulty relating to
people. He felt increasingly nervous and fearful of crowds.
-5-
He started to experience severe headaches, and began drinking
heavily and taking drugs. Memories of disturbing events in
Vietnam made
him feel depressed and angry. He had difficulty sleeping,
and suffered from nightmares involving his war experiences.
He twice attempted suicide,and was in and out ofVA Hospitals.
Tracy also testified that he has suffered from
hallucinations. In or about 1973, he was sitting at his
parents' kitchen window when he noticed outside four people,
whom he knew to be dead, walking towards the house. Tracy
described that, on another occasion, in April 1991, he was
walking down the street when he noticed two people, who were
not really there, on either side of him. They were dressed
in Vietnam jungle fatigues. Tracy felt one of them pat him
on the back, and heard the other say, "Now we're home, Pat."
According to Tracy, one man was black, the other white. This
hallucination lasted approximately twenty seconds.
Tracy told the jury that the weeks leading up to
the robbery were particularly difficult for him. He
testified to experiencing "horrible dreams" of war,
bloodshed, and his dead friends. Some of his dreams depicted
events that actually happened, and some were recurring.
Tracy said that he was being "driv[en] over the edge" by all
the celebrating and publicity surrounding the end of the
Persian Gulf War. He was particularly disturbed by the
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yellow ribbons people were hanging to welcome the returning
soldiers.
Tracy testified that, during the days leading up to
the robbery of the Shaw's Supermarket, May 15-17, 1991, he
was staying in a motel in Maine contemplating suicide.
Towards this end, he purchased the gun used in the robbery.
Tracy testified that, while taking a walk on the morning of
May 18, 1991, the day of the Shaw's robbery, he saw a man in
front of a Shop 'n Save selling poppies for Memorial Day.
The store front was adorned with yellow ribbons. This sight,
said Tracy, made him feel "horrible." Tracy walked back to
the motel where he was staying. Then, according to Tracy, a
thought came to him to "rob something," distribute the money
to the families of his friends who were killed in Vietnam,
and then kill himself at the Vietnam Veterans Memorial in
Washington, D.C. Thereafter, Tracy took a walk, stole a car,
went back to the motel, left the motel again, and robbed the
Shaw's Supermarket. As to what he was thinking when he
robbed the store, Tracy's last statement on direct
examination was:
With everything that had been caving
in on me, thoughts [about] Vietnam, this,
that, and the other thing, all the things
to do with it, friends of mine and stuff
like that, my feelings towards it and
stuff like that, I thought it was the
right thing to do.
-7-
Tracy called three witnesses Wally Rogers, Dr.
John Meserve, and Dr. Terrence Keane who all testified
that Tracy suffers from Post-Traumatic Stress Disorder. Dr.
Keane and Mr. Rogers characterized it as severe and chronic.
In rebuttal, the Government called Dr. Michael Morrison, a
clinical psychologist with the Federal Bureau of Prisons at
the Federal Correctional Facility in Petersburg, Virginia.
He testified that, while he examined Tracy between March 5,
1992, and April 9, 1992, in order to determine if he was
competent to stand trial, he did all that was necessary to
assess Tracy's legal sanity. Dr. Morrison confirmed that
Tracy suffers from Post-Traumatic Stress Disorder, as well as
alcohol and substance abuse. He testified that a person
suffering from Post-Traumatic Stress Disorder could lose
touch with reality at a given point in time if he were to
experience a flashback, which Dr. Morrison described as "an
intense memory or reliving of [a] traumatic event."
According to Dr. Morrison, Tracy's actions on May 18, 1991,
as described in the police report, did not indicate that
Tracy was experiencing a Post-Traumatic Stress Disorder
flashback because there were no actions or statements to
suggest that Tracy thought that he was involved in combat at
that time.
Dr. Morrison's assessment of Tracy was supported by
Dr. Elizabeth Knutson, Acting Chief of Psychology at the
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Metropolitan Correctional Center in New York. Dr. Knutson
agreed that Tracy suffers from Post-Traumatic Stress
Disorder, and, like Dr. Morrison, she found no indication
that Tracy was experiencing a flashback when he robbed the
Shaw's Supermarket. To the contrary, in her opinion, Tracy
was cool, calm, and goal-directed during the course of the
robbery.
II.
II.
Tracy makes four arguments on appeal, namely, that
the district court erred in (1) allowing the Government to
introduce evidence of his prior criminal record that went
beyond the parties' stipulation that Tracy was a convicted
felon, (2) instructing the jury on the meaning of the term
"knowingly," (3) failing to instruct the jury on the
consequences of a verdict of not guilty only by reason of
insanity, and (4) sentencing him as an armed career criminal
under 18 U.S.C. 924(e)(1). We address these contentions.
A.
A.
A felon-in-possession prosecution under 18 U.S.C.
922(g)(1) requires the Government to prove three elements:
(1) that the defendant knowingly possessed a firearm; (2)
that, at the time of the possession, the defendant had "been
convicted in any court of a crime punishable by imprisonment
for a term exceeding one year," 18 U.S.C. 922(g)(1); and
(3) that such possession was in or affecting interstate or
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foreign commerce. At trial, the parties stipulated "that[,]
on or about May 18, 1991, [the date of the crime,] Patrick W.
Tracy . . . had been previously convicted of a felony
offense."3 Notwithstanding, the district court permitted
the Government to elicit during its cross-examination of
Tracy testimony that he was convicted (1) on September 24,
1984, of uttering a false prescription, (2) on December 18,
1980, of armed assault with intent to rob the Regan Pharmacy,
and (3) on December 11, 1987, of buying or receiving a stolen
firearm or carrying a firearm in a vehicle. Tracy contends
that, in light of the stipulation, the district court
committed reversible error in allowing the Government to
delve into his prior convictions because such evidence was
inadmissible under Fed. R. Evid. 404(b). The Government
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3. The stipulation was intended to satisfy the second
element of the Government's case against Tracy. While it
might not be apparent to a jury that conviction of a felony
meant conviction "in any court of a crime punishable by
imprisonment for a term exceeding one year," 18 U.S.C.
922(g)(1), any confusion was remedied by the district court's
instruction to the jury making the necessary connection:
Second, that before Patrick Tracy
possessed the firearm, he had been
convicted in a court of a crime
punishable by imprisonment for a term in
excess of one year. That is, a felony
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offense. There is no dispute on this
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issue.
(emphasis added). Notwithstanding the district court's
instruction, it would have been preferable had the parties
stipulated in the statutory language, i.e., "convicted in any
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court of a crime punishable by imprisonment for a term
exceeding one year."
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argues in response that evidence of Tracy's prior convictions
was properly introduced to impeach Tracy's credibility
pursuant to Fed. R. Evid. 609. We agree with the Government.
In United States v. Tavares, 21 F.3d 1 (1st Cir.
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1994) (en banc), we recently held that "evidence beyond the
fact of the prior conviction is inadmissible absent adequate
trial court findings that its noncumulative relevance is
sufficiently compelling to survive the balancing test of Fed.
R. Evid. 403." Id. at 5. Hence, given the stipulation and
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the district court's instruction, it would have been error
here to have admitted evidence of the prior convictions in
order to prove that Tracy had been convicted of a crime
punishable by imprisonment for over one year. But we also
stated in Tavares "that in some cases evidence concerning the
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nature of the prior conviction will be admissible for
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impeachment or other reasons, despite its lack of probative
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value on the prior conviction element of the crime." Id. at
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6 (emphasis added). In this context, while Fed. R. Evid.
404(b) states, inter alia, that "[e]vidence of other crimes,
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wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith," Rule
609 allows that, under certain circumstances and in
appropriate cases, "[d]efendants who choose to become
witnesses on their own behalf become subject to impeachment
-11-
by evidence of prior crimes," 2 Jack B. Weinstein & Margaret
A. Berger, Weinstein's Evidence 404[04], at 404-31 (1993).
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This is so notwithstanding the Advisory Committee's awareness
"that, in virtually every case in which prior convictions are
used to impeach the testifying defendant, the defendant faces
a unique risk of prejudice i.e., the danger that convictions
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that would be excluded under Fed. R. Evid. 404 will be
misused by a jury as propensity evidence despite their
introduction solely for impeachment purposes." Fed. R. Evid.
609 advisory committee's note, 1990 amendment.
Here Tracy took the stand, and evidence of his
prior convictions was admissible if it satisfied the
requirements of Fed. R. Evid. 609, which states in relevant
part:
(a) General rule. For the purpose of
(a) General rule.
attacking the credibility of a witness,
(1) evidence that a witness other
than an accused has been convicted
of a crime shall be admitted,
subject to Rule 403, if the crime
was punishable by death or
imprisonment in excess of one year
under the law under which the
witness was convicted, and evidence
that an accused has been convicted
of such a crime shall be admitted if
the court determines that the
probative value of admitting this
evidence outweighs it prejudicial
effect to the accused; and
(2) evidence that any witness has
been convicted of a crime shall be
admitted if it involved dishonesty
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or false statement, regardless of
the punishment.
The Government insists that under Fed. R. Evid. 609(a)(2) the
district court had no discretion to exclude the evidence of
Tracy's conviction for uttering a false prescription, as this
was a crime of dishonesty offered to impeach Tracy's
credibility as a witness. The Government is correct. A
conviction for uttering a false prescription plainly involves
dishonesty or false statement. See Fed. R. Evid. 609 notes
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of conference committee, H.R. No. 93-1597 ("By the phrase
`dishonesty and false statement' the Conference means crimes
such as perjury or subornation or perjury, false statement,
criminal fraud, embezzlement, or false pretense, or any other
offense in the nature of crimen falsi, the commission of
which involves some element of deceit, untruthfulness, or
falsification bearing on the accused's propensity to testify
truthfully."). Moreover, "[t]he admission of prior
convictions involving dishonesty and false statement is not
within the discretion of the [district] [c]ourt." Id.; e.g.,
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United States v. Morrow, 977 F.2d 222, 228 (6th Cir. 1992)
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("Rule 609(a)(2) . . . clearly limits the discretion of the
court by mandating the admission of crimes involving
dishonesty or false statements."), cert. denied, 113 S. Ct.
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2969, 125 L. Ed. 2d 668 (1993); United States v. Kiendra, 663
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F.2d 349, 354 (1st Cir. 1981) ("[E]vidence offered under Rule
609(a)(2) is not subject to the general balancing provision
-13-
of Rule 403."). Hence, we find no error in the admission of
evidence of the prior conviction for uttering a false
prescription.
Likewise, the Government insists that it was proper
to cross-examine Tracy about his armed assault and stolen
firearms convictions pursuant to Fed. R. Evid 609(a)(1).
Under this Rule, evidence that the accused has been convicted
of a crime will be admitted if (1) "the crime was punishable
by death or imprisonment in excess of one year under the law
under which the [accused] was convicted," Fed. R. Evid.
609(a)(1), (2) the prior conviction satisfies the time limit
requirements of Fed. R. Evid. 609(b), and (3) "the [district]
court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused,"
Fed. R. Evid. 609(a)(1). The parties agree that the first
two of these requirements have been met. They disagree,
however, about whether the district court properly balanced
the probative value of the evidence of Tracy's prior
convictions against its prejudicial effect. According to the
Government, evidence of Tracy's prior convictions was
necessary to discredit his testimony on direct examination to
the effect that he could not appreciate the nature and
quality or wrongfulness of his acts. Specifically, the
Government points to the following colloquy that took place
during Tracy's direct examination:
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Q. Now I assume that you were aware
that you can't rob supermarkets
generally; correct?
A. Yes.
Q. On this day, when this incident you
just described occurred, what were
you thinking about this?
A. I was thinking that it was the right
thing to do.
Q. Why?
A. With everything that had been caving
in on me, thoughts [about] Vietnam,
this, that, and the other thing, all
the things to do with it, friends of
mine and stuff like that, my
feelings towards it and stuff like
that, I thought it was the right
thing to do.
The Government says that evidence of Tracy's prior
convictions, elicited on cross-examination, discredited this
testimony by revealing that Tracy has been told repeatedly by
the judicial system that conduct akin to that engaged in on
May 18, 1991, is not "the right thing to do." Tracy, on the
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other hand, argues that evidence of his prior convictions was
not probative as to his lack of credibility because he never
testified that he could not appreciate the nature and quality
or wrongfulness of the conduct for which he was charged, that
is, illegally possessing a gun.
We review a district court's probative
value/prejudicial effect decision under Fed. R. Evid.
609(a)(1) for abuse of discretion. United States v.
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-15-
Mehrmanesh, 689 F.2d 822, 834 (9th Cir. 1982); see United
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States v. Lipscomb, 702 F.2d 1049, 1068 n.69 (D.C. Cir. 1983)
______ ________
(citing cases). Here, the district court initially heard the
parties' arguments before Tracy testified. The prosecuting
attorney maintained that this "is a case about whether or not
[Tracy] appreciated the wrongfulness of his acts. And in my
view, the assertion that he states that he is that he did
not appreciate the wrongfulness of his acts falls apart when
a Judge has told him on seven occasions that I would offer
excuse me, eight occasions, that it was wrong." Counsel for
Tracy responded that the evidence of Tracy's prior
convictions was being offered only to prove Tracy's character
in order to show that he acted in conformity therewith. In
light of these arguments, the district court preliminarily
ruled:
My tentative ruling is that if the
defendant does not testify as to
wrongfulness or nature and quality of his
conduct, that I would probably not permit
impeachment by evidence of these other
felonies, but to let the government
reiterate that the defendant is indeed a
convicted felon. And the reason for that
is that if the testimony of the defendant
does not go to that issue of whether he
appreciated the nature and quality of the
wrongfulness of his conduct on May the
18th, 1991, then the probative value of
these previous felony convictions is
quite limited, and their prejudicial
effect is quite severe because they can
of course suggest to the jury that the
defendant is a dangerous person and
provide risks of conviction on that score
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alone as opposed to looking at the law
and the facts in this case.
On the other hand, if the
defendant's testimony does go to the
issue of whether on that date he
appreciated the nature and quality or the
wrongfulness of his conduct, then it
seems to me that it would be appropriate
and necessary to let in at least some of
the convictions to show that, indeed, the
defendant had been told on previous
occasions that certain kinds of conduct
were wrongful or that the nature and
quality of certain kinds of conduct were
subject to punishment.
After Tracy testified on direct, but before cross-
examination, the Government asked the district court to make
its final ruling as to the admissibility of Tracy's prior
convictions. The district court decided:
The defendant has in fact testified
about wrongfulness, rightfulness of the
conduct, and the question of whether he
was aware of the quality, nature and
quality of his acts[.] [T]hat testimony
has come out, so I will affirm the
original ruling . . . .
In explaining this decision, the district court said:
The issue of credibility under
[Rule] 609 is with respect to [the]
offense being made[.] I have to weigh
the probative value versus the prejudice
that's involved, and the testimony here
in terms of his understanding as to what
is wrongful, what is right, and his
testimony concerning his void and so on
in his mind[.] I think there is
probative value here that would outweigh
the prejudice . . . .
To mitigate any prejudice to Tracy, the district court
instructed the jury: "You've heard testimony in this case
-17-
about prior criminal convictions. You may consider such
testimony about prior criminal convictions only in assessing
the credibility of the person who was convicted."
We are unable to say the district court abused its
discretion in the balance it struck between the probative
value of the evidence and its prejudicial effect. Tracy
pleaded not guilty only by reason of insanity. A central
issue, therefore, was whether Tracy could understand the
nature and quality or wrongfulness of his conduct. Before
Tracy took the stand, the district court cautioned him that,
if he testified that he could not appreciate the wrongfulness
of his conduct on May 18, 1991, it would allow the Government
to impeach his testimony by introducing evidence of three
prior convictions to show that Tracy had reason to know that
his conduct was improper. Disregarding this admonition,
Tracy testified that he thought that robbing the Shaw's
Supermarket on May 18, 1991, was the "right thing to do."4
In these circumstances, the district court's decision to
allow evidence of Tracy's prior convictions for impeachment
purposes was not error.
B.
B.
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4. Notwithstanding Tracy's suggestion to the contrary, we
think that the district court could reasonably have inferred
from this testimony that Tracy was saying that he thought it
was acceptable for him to possess a gun when he robbed the
Shaw's Supermarket.
-18-
Tracy contends that the district court erroneously
defined the term "knowingly." The district court instructed
the jury:
First, [you must find] that Patrick
Tracy knowingly possessed a firearm as
charged. There is no dispute that the
object in question is a firearm, but the
parties do dispute whether Patrick Tracy
knowingly possessed it.
***
The word "knowingly" means that the
act was done voluntarily and
intentionally.
Following this charge, Tracy objected and asked "the
[district] court [to] define `knowingly' as meaning
deliberately, intentionally and fully aware of what he was
doing."5 The district court declined, explaining that such
an instruction would have confused the jury by blurring the
distinction between the Government's case and Tracy's
insanity defense, which required him to prove that he could
not understand the nature and quality or wrongfulness of his
conduct.
Tracy argues that the district court's refusal to
give his requested instruction amounted to reversible error
because the jury was not informed that the Government had to
prove that he was fully aware of what he was doing on May 18,
1991. According to Tracy, his entire defense was premised on
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5. Tracy asserts that he requested this same instruction
before trial and during the pre-charge conference.
-19-
the theory that, because of his Post-Traumatic Stress
Disorder, he was not fully aware of what he was doing when he
used a gun to rob the Shaw's Supermarket. The Government
responds that Tracy was not entitled to have his requested
instruction delivered verbatim, and the district court's
instruction was a reasonable explanation of the term
"knowingly." We find the Government's argument persuasive.
The parties have not called to our attention any
First Circuit decisions discussing the meaning of the term
"knowingly."6 Published opinions and pattern jury
instructions from other circuits, however, provide guidance.
To be sure, some circuits have embraced a jury instruction
stating that "knowingly means that a defendant realized what
he was doing and was aware of the nature of his conduct."
United States v. Lawson, 780 F.2d 535, 542 (6th Cir. 1985);
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e.g., Federal Criminal Jury Instructions of the Seventh
____
Circuit, Instruction No. 6.04, pp. 86-87 (1980) ("When the
word `knowingly' is used in these instructions, it means that
the defendant realized what he was doing and was aware of the
nature of his conduct, and did not act through ignorance,
mistake or accident . . . ."); Manual of Model Criminal Jury
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6. Tracy does cite United States v. Couming, 445 F.2d 555,
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556-57 (1st Cir.), cert. denied, 404 U.S. 949, 92 S. Ct. 291,
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30 L. Ed. 2d 266 (1971), as authority for his proffered
instruction. We agree with the finding below, however, that,
while it is true that the district court in Couming defined
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"knowingly" as Tracy seeks to have it defined here, the court
of appeals did not review the propriety of that definition.
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Instructions for the Ninth Circuit, Instruction No. 5.06
(1992) ("An act is done knowingly if the defendant is aware
of the act and does not act [or fail to act] through
ignorance, mistake, or accident . . . ."); see also Model
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Penal Code 2.02(2)(b)(i) ("A person acts knowingly with
respect to a material element of an offense when: (i) if the
element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature
or that such circumstances exist . . . ."); 1 Edward J.
Devitt et al., Federal Jury Practice and Instructions
_________________________________________
17.04, at 626 (4th ed. 1992) ("The term `knowingly,' as used
in these instructions to describe the alleged state of mind
of the defendant, means that [he] [she] was conscious and
aware of [his] [her] [action] [omission], realized what [he]
[she] was doing or what was happening around [him] [her], and
did not [act] [fail to act] because of ignorance, mistake, or
accident.").
Other circuits and commentators, however, have
endorsed a definition of the term "knowingly" that largely
coincides with the instruction given by the district court
here. E.g., Pattern Jury Instructions of the District Judges
____
Association of the Fifth Circuit, Criminal Cases, Instruction
No. 1.35 (1990) ("The word `knowingly,' as that term has been
used from time to time in these instructions, means that the
act was done voluntarily and intentionally, not because of
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mistake or accident."); Pattern Jury Instructions of the
District Judges Association of the Eleventh Circuit, Criminal
Cases, Basic Instruction No. 9.2 (1985) ("The word
`knowingly,' as that term has been used from time to time in
these instructions, means that the act was done voluntarily
and intentionally and not because of mistake or accident.");
1A Leonard B. Sand et al., Modern Federal Jury Instructions
________________________________
35-28 (1993) ("An act is done knowingly if you find that the
defendant acted purposely and voluntarily, and not by mistake
or accident.") (citing cases).
We think the district court's definition of
"knowingly," which is commonly accepted, was appropriate
here. See United States v. Noone, 913 F.2d 20, 30 (1st Cir.
___ _____________ _____
1990) ("[I]t is well settled that [a district] court `need
not give instructions in the precise form or language
____________________
requested by the defendant.'" (quoting United States v.
_____________
7. The district court charged the jury:
Beltran, 761 F.2d 1, 11 (1st Cir. 1985))), cert. denied, 500
_______ ____________
For you to find Patrick Tracy not guilty only
by reason of insanity, you must be convinced that
U.S. 906, 111 S. Ct. 1686, 114 L. Ed. 2d 81 (1991). The
Patrick Tracy has proved each of these things by
clear and convincing evidence: First, that at the
district court felt that Tracy's proffered instruction
time of the offense, Patrick Tracy suffered from a
severe mental disease or defect. Second, that the
misleadingly blurred the distinction between the Government's
mental disease or defect prevented him from
understanding the nature and quality or
burden and Tracy's defense. The definition of "knowingly"
wrongfulness of his conduct.
put forward by the district court in no sense unfairly
***
weakened Tracy's insanity defense, as to which the district
If you find that the government has proved all
the elements of the offense beyond a reasonable
court rendered a clear and accurate instruction.7 Had the
doubt and that Patrick Tracy has proven by clear
and convincing evidence that he was not sane at the
time of the offense, you will find him not guilty
only by reason of insanity.
-22-
jury thought that Tracy, because of his Post-Traumatic Stress
Disorder, was unable to appreciate the nature and quality or
wrongfulness of his conduct, it could have, pursuant to the
district court's instructions, returned a verdict of not
guilty only by reason of insanity.
C.
C.
Tracy's third argument is that the district court
erred in refusing to instruct the jury on the consequences of
a not guilty only by reason of insanity verdict.
Specifically, Tracy requested the following charge:
[I]f you find Patrick Tracy not guilty by
reason of insanity, it becomes the duty
of this court to commit Patrick Tracy to
a suitable hospital facility.
The district court declined to give such an instruction,
explaining at length its reasons for its decision.
We find no error in the district court's ruling.
Recently, in Shannon v. United States, U.S. , 114 S. Ct.
_______ _____________
2419 (1994), the United States Supreme Court concluded that a
federal district court is not "required to instruct the jury
___
regarding the consequences to the defendant of a verdict of
`not guilty by reason of insanity,' either under the Insanity
Defense Reform Act of 1984 [, 98 Stat. 2057 (codified as
amended at 18 U.S.C. 17, 4241-4247),] or as a matter of
general federal practice." Shannon, 114 S. Ct. at 2422.
_______
Although the Court recognized "that an instruction of some
-23-
form may be necessary under certain limited circumstances,"8
id. at 2428, Tracy has not argued that such circumstances
___
exist here, and our review of the record has revealed none.
D.
D.
Tracy argues that the district court erred in
sentencing him under the Armed Career Criminal Act (ACCA), 18
U.S.C. 924(e)(1), which states:
In the case of a person who violates
section 922(g) of this title and has
three previous convictions by any court
referred to in section 922(g)(1) of this
title for a violent felony or a serious
drug offense, or both, committed on
occasions different from one another,
such person shall be fined not more than
$25,000 and imprisoned not less than
fifteen years, and, notwithstanding any
other provision of law, the court shall
not suspend the sentence of, or grant a
probationary sentence to, such person
with respect to the conviction under
section 922(g), and such person shall not
be eligible for parole with respect to
the sentence imposed under this
subsection.
While he concedes that he has two "previous convictions" that
satisfy the "violent felony" standard of 924(e)(1), Tracy
maintains that the district court could not, for two reasons,
use a 1979 Massachusetts conviction for assault and battery
on a police officer, to which he pled guilty on September 25,
____________________
8. The Court said, for example, that, if "a witness or
prosecutor states in the presence of the jury that a
particular defendant would `go free' if found [not guilty
only by reason of insanity], it may be necessary for the
district court to intervene with an instruction to counter
such a misstatement." Shannon, 114 S. Ct. at 2428.
_______
-24-
1979, as the third predicate felony. First, Tracy claims
that the 1979 conviction is constitutionally invalid because
he was denied his right to have appointed counsel.9 Second,
he asserts that the Government failed to provide him with
adequate notice that it intended to rely on the 1979
conviction in seeking sentence enhancement under 924(e)(1).
We address these arguments separately.
i.
i.
In United States v. Paleo, 967 F.2d 7, 11 (1st Cir.
_____________ _____
1992), we held that "a federal defendant may challenge, in a
sentencing proceeding, the constitutional validity of past
convictions, used to increase his federal sentence." We said
that, if a defendant should seek to contest the validity of a
properly evidenced past conviction that is, one documented
by a certified copy of a court record of conviction or a
presentence report's account of a past conviction that
appears constitutionally valid on its face, "he must say that
he wishes to do so, explain the constitutional defect, and
convince the sentencing court that the conviction was indeed
obtained in violation of the federal Constitution," id. at
___
13. Recently, however, our decision in Paleo was
_____
all but overruled by the United States Supreme Court in
____________________
9. In support of this argument, Tracy submitted, inter alia,
__________
an affidavit in which he stated, among other things, that he
"was not represented by any attorney regarding this claimed
conviction of assault and battery on a police officer."
-25-
Custis v. United States, U.S. , 114 S. Ct. 1732 (1994).
______ _____________
There the Court held that, in a federal sentencing
proceeding, "a defendant has no . . . right (with the sole
exception of convictions obtained in violation of the right
to counsel)" to "collaterally attack the validity of previous
state convictions that are used to enhance his sentence under
the ACCA." Id. at 1734. In refusing "to extend the right to
___
attack collaterally prior convictions used for sentence
enhancement beyond the right to have appointed counsel
established in Gideon,"10 id. at 1738, the Court said, "We
______ ___
think that since the decision in Johnson v. Zerbst11 more
_______ ______
than half a century ago, and running through our decisions in
Burgett12 and Tucker,13 there has been a theme that
_______ ______
failure to appoint counsel for an indigent defendant was a
unique constitutional defect," id. (footnotes not in
___
original).
Because Tracy challenges the constitutional
validity of his 1979 state court conviction on the grounds
that he was not represented by counsel, his argument is not
____________________
10. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.
______ __________
Ed. 2d 799 (1963).
11. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L.
_______ ______
Ed. 1461 (1938).
12. Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed.
_______ _____
2d 319 (1967).
13. United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30
_____________ ______
L. Ed. 2d 592 (1972).
-26-
foreclosed by Custis. In this limited respect, our decision
______
in Paleo still controls. Accordingly, we consider whether
_____
Tracy has demonstrated by a preponderance of the evidence,
see United States v. Wilkinson, 926 F.2d 22, 28 (1st Cir.),
___ _____________ _________
cert. denied, 501 U.S. 1211, 111 S. Ct. 2813, 115 L. Ed. 2d
____________
985 (1991), that the 1979 conviction was indeed obtained in
violation of Tracy's constitutional right to appointed
counsel.
The record indicates that Tracy was arrested on
June 3, 1979, for uttering a false prescription and for
assault and battery on the arresting Town of Brookline police
officer. Thereafter, the Brookline Division of the District
Court Department issued an order, which read:
The Court has determined that [Patrick
Tracy] is indigent and that [the] gravity
of the charge against the said defendant
. . . require[s] that the defendant be
represented by counsel. The clerk is
hereby directed to immediately notify
. . . Neil Rossman of the determination
of the court.
The docket sheet from the Municipal Court of Brookline
indicates that Attorney Rossman appeared for Tracy on June
25, 1979, but was succeeded on August 20, 1979, by Attorney
Dianne Hayes. Rossman's exodus is explained by entries
indicating that he was fined for failing to appear for
hearings scheduled for August 2, and 20, 1979, causing the
case to be continued on those two occasions. The entries
further show that Tracy finally pled guilty to both charges
-27-
on September 25, 1979, at which time, insofar as can be
gleaned from the docket sheet, he was represented by his
listed attorney, Dianne Hayes. These entries are consistent
with Hayes's statement in an affidavit submitted to the
district court that she remembers "being called on the
telephone on or about August 20, 1979, by someone from the
District Court of Northern Norfolk, Dedham, and being asked
if [she] would accept an appointment for a case in which
Attorney Neil Rossman had been previously appointed, but in
which case he had failed to appear." Hayes did not say in
her affidavit whether she accepted or rejected the
appointment, but she did state that she had "serious doubts
that [she] represented Patrick Tracy at the time he plead[ed]
guilty to . . . assault and battery on a police officer,
because [she was] unable to locate a file for him." Hayes
said she did not believe that she had ever thrown away or
destroyed a closed file. She noted, however, that, on
October 24, 1987, the basement of her office, where she kept
her closed files, was flooded and that, as a result, some of
the older files were placed out of order.
The district court decided, in light of this
record, that Tracy had failed to show by a preponderance of
the evidence that he was denied his right to the appointment
of counsel. We find no error. The court documents show
that, after Tracy was arrested on June 3, 1979, it was
-28-
determined that he was an indigent defendant in need of
counsel. Attorney Neil Rossman was assigned to his case, and
the docket entries reveal that he made an appearance on June
25, 1979. The docket entries further show that, following
Rossman's failure to appear and two continuances, Attorney
Dianne Hayes became Tracy's attorney of record on August 20,
1979. There is no indication that Hayes thereafter ceased to
represent Tracy in these matters or was absent on September
25, 1979, when he pled guilty. There were no further
continuances, and no fines were noted as levied against
Hayes, as they had been against Rossman, for failing to
appear at scheduled hearings.
The evidence casting doubt on whether Tracy
received legal representation is limited to Tracy's and
Hayes's affidavits. The district court did not find Tracy's
affidavit credible given Tracy's strong incentive to avoid
the ACCA. With regard to Hayes's affidavit, Hayes could not
specifically recollect whether or not she represented Tracy,
and the district court found there was no suggestion "that
she turned down the appointment that she was asked to accept
by the court." Moreover, the district court thought that
Hayes's inability to locate a file that would confirm her
representation of Tracy might well be explained by the flood
in her basement that disrupted her filing system. We do not
find clear error in the district court's conclusion that
-29-
Tracy had failed to prove, relative to the 1979 conviction,
that he was unrepresented by counsel, in violation of his
constitutional right.
ii.
ii.
Tracy also argues that it was error for the
district court to use the 1979 assault and battery conviction
as one of three predicate violent felonies under 924(e)(1)
because he did not receive adequate notice that the
Government intended to rely on it. Tracy contends that the
indictment, which he claims he had a right to count on,
listed only two felonies that would satisfy the requirements
of 924(e)(1), and did not mention the 1979 assault and
battery conviction. He says he did not learn that the
Government intended to use that conviction until he received
the presentence report. This delay, he insists, prejudiced
his defense strategy and his decision as to whether to plead
guilty or go to trial. He suggests that the indictment,
having listed some of Tracy's prior felonies that would be
____
used for sentence enhancement, should have listed all the
___
predicate felonies.
The district court rejected this same argument at
Tracy's sentencing hearing, finding our decision in United
______
States v. Rumney, 867 F.2d 714 (1st Cir.), cert. denied, 491
______ ______ ____________
U.S. 908, 109 S. Ct. 3194, 105 L. Ed. 2d 702 (1989), to be
dispositive. We agree. In Rumney, as here, the Government
______
-30-
informed the defendant before trial that it would seek an
enhanced sentence under the ACCA, but failed to include all
the predicate felonies in the indictment. We held that the
Government need not allege in the indictment the three prior
felonies that it will use to enhance a defendant's sentence
under 924(e)(1). Id. at 717-19; e.g, United States v.
___ ___ ______________
Alvarez, 972 F.2d 1000, 1006 (9th Cir. 1992) (rejecting the
_______
appellant's argument that "the district court erred in
considering three prior convictions not listed in the
indictment, and for which the government did not file [a]
written notice of intention to use prior to trial"), cert.
_____
denied, 113 S. Ct. 1427, 122 L. Ed. 2d 795 (1993).
______
The Sixth Circuit's decision in United States v.
______________
Pedigo, 879 F.2d 1315 (6th Cir. 1989), which Tracy relies on,
______
is distinguishable. There, the record suggested that the
district court had relied upon only two prior convictions,
instead of the necessary three. In refusing to take account
of a third prior felony conviction, which had been introduced
for impeachment purposes at trial, the court of appeals
stated that the defendant may not ever have received adequate
notice that such conviction would be used to enhance his
sentence. Id. at 1319. Here, by contrast, the district
___
court found that Tracy received ample notice of the 1979
conviction:
There has been abundant time for the
defendant to respond and to challenge the
-31-
conviction as he has done, and so far as
any requirement that the crime be brought
to his attention at an earlier stage is
concerned, he was at least made aware of
it by the time of trial in connection
with the preparation of exhibits for use
at trial, and I don't find that any
further or earlier notice was required on
that score.
We are satisfied that the district court did not err in
considering Tracy's 1979 conviction in enhancing his sentence
under 924(e)(1).
Affirmed.
________
-32-
