United States v. Tracy

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2223

UNITED STATES,

Appellee,

v.

PATRICK TRACY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Cyr, Circuit Judge.

Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay B. McCloskey, United States Attorney, and Nicholas M. Gess,

Assistant United States Attorney, were on brief for appellee.
David R. Beneman, with whom Levenson, Vickerson & Beneman was on

brief for appellant.

September 28, 1994

CAMPBELL, Senior Circuit Judge. Patrick W. Tracy,

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

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.

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.

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-

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

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

-6-

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

-8-

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.

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 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

-9-

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

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

offense. There is no dispute on this

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

court of a crime punishable by imprisonment for a term
exceeding one year."

-10-

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.

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

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

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." Id. at

6 (emphasis added). In this context, while Fed. R. Evid.

404(b) states, inter alia, that "[e]vidence of other crimes,

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).

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

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

-12-

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

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.,

United States v. Morrow, 977 F.2d 222, 228 (6th Cir. 1992)

("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.

2969, 125 L. Ed. 2d 668 (1993); United States v. Kiendra, 663

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:

-14-

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

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.

-15-

Mehrmanesh, 689 F.2d 822, 834 (9th Cir. 1982); see United

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

-16-

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.

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

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);

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

6. Tracy does cite United States v. Couming, 445 F.2d 555,

556-57 (1st Cir.), cert. denied, 404 U.S. 949, 92 S. Ct. 291,

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

"knowingly" as Tracy seeks to have it defined here, the court
of appeals did not review the propriety of that definition.

-20-

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

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

-21-

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.

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.

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.

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.

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-