USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1666
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
DAVID P. PRATT,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Selya, Circuit Judge.
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M. Kristin Spath, Assistant Federal Defender, for appellant.
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Peter E. Papps, First Assistant U.S. Attorney, with whom Paul M.
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Gagnon, United States Attorney, was on brief for appellee.
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January 18, 1996
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ALDRICH, Senior Circuit Judge. Defendant David P.
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Pratt, having been allowed to withdraw a plea of guilty, was
tried to a jury for violation of United States Code, Title
18, Section 876 (Mailing a Threatening Communication) and
found guilty. He now appeals, with new counsel, claiming
violation of Fed.R.Evid. 404(b) by the admission of
prejudicial testimony of another threat, and from a sentence
that included a two level upward departure. We remand for
further consideration of sentence.
In August, 1991, defendant's automobile was
repossessed for nonpayment of an installment, and discovered
to contain a substantial number of automatic and semi-
automatic firearms and explosive devices. These were turned
over to the Goffstown, New Hampshire, Police Department but
eventually found to be defendant's lawful property. In spite
of this finding, Police Chief Stephen Monier refused to
return them, absent a court order. Defendant, greatly
angered by the delay, complained a number of times. He
phoned the police station on the morning of July 20, 1992,
and was told to call back that afternoon. An hour later he
telephoned Chief Monier's home and spoke to a young friend of
Monier's ten year old daughter, who said that he was not
there. The man stated that he was David Pratt and to tell
her father, "I know where he lives." When informed of the
call, Monier took it to be a serious threat. On September
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14, 1992, a New Hampshire court ordered that defendant's
weapons and devices be returned to him, and the Goffstown
police complied.
On October 1, 1992, Monier received through the
mail, postage prepaid, a carton which was found to contain a
dead and badly mutilated pig of some 29 pounds. There were
no tell-tale writings on, or in, the package, but
fingerprints, identified to be defendant's, were found on the
outside. At trial defendant testified that the pig was his;
that he had shot it, following an accident, and that one
Jennifer Gagnon stole it from his refrigerator and mailed it
to Monier without his suggestion or knowledge. By the time
of trial, Gagnon was deceased.
Although there was other supporting evidence,
including defendant's boasting to a friend that he had sought
to scare Monier by sending the mutilated pig, the government
chose to tighten its case by eliciting evidence of the
threatening telephone call. Defendant objected at the outset
to the admission of any evidence of the call, and to "this
whole line of testimony." The court disagreed, but did
caution the jury to consider any evidence, if a prior threat,
as distinct from the pending charge, and as relevant "only to
show things like the identity of the defendant or his
possible motive or his possible intent or the absence of
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mistake or accident with respect to the charge that's on
trial here".
On appeal defendant argues that the telephone
threat was very different from the one with which he was
charged, and that its introduction was simply to blacken his
character as forbidden by Rule 404(b). See, United States v.
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Tuesta-Toro, 29 F.3d 771, 775 (1st Cir. 1994), cert. denied,
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___ U.S. ___, 115 S. Ct. 947, 130 L. Ed. 2d 890 (1995). He
contends, first, that it was inadmissible altogether under
Fed.R.Evid. 404(b),1 or that its prejudice would in any
event substantially exceed its probative value, rendering it
excludable under Fed.R.Evid. 403.2 The government says,
inter alia, that the threat displayed defendant's grudge
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against Chief Monier, an intent to act upon it, and knowledge
of his victim's residence (to which the packaged pig was
addressed), as well as being a self-identification against
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1. Rule 404(b) provides, in relevant part:
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show action in
conformity therewith. It may, however,
be admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity,
or absence of mistake or accident.
2. Rule 403 states, in relevant part:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice . . .
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his own interest. We quite agree that the disputed evidence
had "special relevance" to material issues, Tuesta-Toro, 29
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F.3d at 775 -- even defendant concedes the purpose for
introducing it included showing the identity of the person
who mailed the pig -- but the prosecution's use of it
progressed well beyond the necessary. Its admission provided
the basis for subsequent dramatization of the call's
emotional effect upon Monier and his family, particularly on
his young daughter. This was not relevant, and magnified the
very prejudice that the Rules of Evidence were designed to
minimize.3 Fed.R.Evid. 403, 404(b). Tuesta-Toro, 29 F.3d
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at 775; United States v. Aguilar-Aranceta, 58 F.3d 796, 798
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(1st Cir. 1995).
However, defendant's failure to call the court's
attention to prosecutorial excess as it occurred,4 and to
request consideration of the probative value of proffers
concerning, for example, the anxiety of the Chief's family,
his keeping a firearm beside his bed, and the inability of
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3. The government's brief is totally silent in spite of
defendant's detailed complaint. At oral argument its sole
response to our questioning was that its purpose was to make
sure the jury realized there had been a call, and that the
"cold record" may look worse to us. Counsel's thermometer
needs adjustment.
4. Defendant's objection at the time of its initial
introduction "to this line of testimony" related to
admissibility of the fact of the phone call, correctly
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overruled by the court, not to the subsequent dramatization
of the family's fears, which elicited not a single protest
from defense counsel.
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his little girl to sleep alone following the telephone
threat, in light of their likely prejudicial effect, deprived
the court of an opportunity to make particularized rulings
which we could now review. It is counsel's duty not to sit
idly by while his case is conspicuously suffering, see
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Clemente v. Carnicon-Puerto Rico Mgmt. Assoc., 52 F.3d 383,
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387 (1st Cir. 1995), and it was his responsibility to object
when testimony strays outside the court's prior limiting
instruction. Courts may be reluctant to interfere and may
have difficulty deciding whether to exclude testimony on
their own. We review for plain error alone. Fed.R.Evid.
103. Tuesta-Toro, 29 F.3d at 775 (absent contemporaneous
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objection, court will reverse only if error "seriously
affected the fundamental fairness and basic integrity of the
proceedings") (citation omitted).
While testimony as to the threat's effect upon
Monier and his family must have been detrimental to defendant
-- though not so pervasive as defendant claims -- the
government's case on the merits was too strong, in our
opinion, to have made this harm to defendant a factor of
consequence in the result. Defendant's own statements, his
fingerprints on the package, his established anger over the
unlawful retention of his firearms, his ownership of the pig
carcass, and, notably, the absence of any visible motive to
have caused the conveniently deceased Gagnon to have mailed
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it, were overwhelming. While we might order a new trial
simply to teach government counsel that his primary duty is
to obtain justice, not to win cases, see Brady v. Maryland,
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373 U.S. 83, 87-88 (1963), we hope we have said enough
without such draconian action.
As to the sentence, application of 4A1.1 of the
Sentencing Guidelines yielded criminal history category (CHC)
I, based on one point assigned for defendant's only countable
prior conviction. However, the court found CHC I clearly
under-represented the seriousness of defendant's criminal
history and his recidivism. Impressed by a "string of zeros"
in defendant's pre-sentence report (PSR) indicating a series
of past convictions -- for disorderly conduct, attendance
violations while in the military, criminal liability for
conduct of another, criminal threatening, assault, and
driving while intoxicated -- for which no "points" could be
assigned under 4A1.1, the court added 1 point for each of
the last four and bumped defendant into CHC III. Notably
with respect to recidivism, each of these were misdemeanors
that occurred a minimum of 13 years prior to the instant
offense.
Section 4A1.3 allows a sentencing court to consider
uncounted prior convictions and other criminal behavior in
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increasing the CHC5 if "reliable information indicates that
the criminal history category does not adequately reflect the
seriousness of the defendant's past criminal conduct or the
likelihood that the defendant will commit other crimes."
U.S.S.G. 4A1.3. Its decision to depart, as well as the
degree of departure, is entitled to respect, given its
"special competence," experience, and "superior feel" for the
case. United States v. Rivera, 994 F.2d 942, at 950, 951
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(1st Cir. 1993) (citing Williams v. United States, 503 U.S.
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193, 112 S. Ct. 1112, 1121 (1992)); United States v. Shrader,
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56 F.3d 288, 292 (1st Cir. 1995). Once we determine the
court acted within its discretion, our only question is
whether its decision was reasonable and adequately explained.
Id.
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We first note that defendant is incorrect to
suggest that the Guidelines forbid or discourage
consideration of old convictions in a decision to depart.
Cf. Rivera, 994 F.2d at 948-49 (detailing forbidden and
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5. The relevant provisions include:
(a) prior sentence(s) not used in
computing the criminal history category
. . .
. . .
(e) prior similar adult criminal conduct
not resulting in a criminal conviction.
U.S.S.G. 4A1.3.
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discouraged departures). Likelihood of recidivism is an
alternative justification to under-representation of the
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seriousness of defendant's criminal history for a decision to
depart upward. U.S.S.G. 4A1.3; Schrader, 56 F.3d at 292.
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The court here made the latter finding, based on prior
sentences for similar conduct (1979 assault and 1977 criminal
threatening), and serious dissimilar conduct (1980 DWI and
1977 criminal liability for conduct of another and theft6).
Where these considerations are appropriate to the decision
whether to depart, and defendant's PSR provides an adequate
basis, we cannot substitute our judgment. United States v.
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Quinones, 26 F.3d 213, 219 (1st Cir. 1994); Rivera, 994 F.2d
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at 952. See also Williams, 503 U.S. at 205, 112 S.Ct. at
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1121. However, once the court believes a properly calculated
CHC significantly under-represents a defendant's criminal
history, the Guidelines direct the court's departure quite
specifically: the court must find that "defendant's criminal
history most closely resembles that of most defendants with
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[the] Criminal History Category [the court seeks to impose]."
U.S.S.G. 4A1.3 (emphasis added). If it were sufficient
simply to add points for conduct excluded from the initial
CHC calculation to arrive at a higher category, the 4A1.1
parameters for guiding CHC determination would be nullified.
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6. The court indicated this was robbery. Although robbery
was the original indictment, defendant ultimately pled guilty
to theft.
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The court's mere conclusion that a CHC III "adequately
reflects defendant's criminal history" fails to shed light on
this question.
Although we accord "substantial leeway" to a
sentencing court's determination of the appropriate degree of
departure,
this freedom does not relieve [it] from
explaining its ultimate decision of how
far to depart. Merely explaining why a
departure was made does not fulfill the
separate requirement of stating the
reasons for imposing the particular
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sentence.
Quinones, 26 F.3d at 219 (emphasis added) (quoting United
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States v. Rosales, 19 F.3d 763, 770 (1st Cir. 1994)). See
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also Rivera, 994 F.2d at 946, 949-50. Because we are unable
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to evaluate responsibly the reasonableness of the extent of
the court's departure absent explication, which we observe
might include at least an indication of why a one category
increase is inadequate, we will follow our past practice of
ordering a limited remand for clarification while retaining
appellate jurisdiction. See Quinones, 26 F.3d at 219-20.
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We affirm defendant's conviction and remand for
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further proceedings with respect to sentence.
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