United States Court of Appeals
For the First Circuit
Nos. 05-2163 and 06-1317
UNITED STATES OF AMERICA,
Appellee,
v.
TIMOTHY J. DUVAL and MICHAEL R. DOUCETTE,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya and Cyr, Senior Circuit Judges.
Miriam Conrad, Federal Defender Office, was on brief, for
appellant Doucette.
John J. Barter, was on brief, for appellant Duval.
Claire J. Evans, Criminal Appellate Section, U.S. Department
of Justice, with whom Michael J. Sullivan, United States Attorney,
and John A. Capin, Assistant United States Attorney, were on brief,
for appellee.
August 7, 2007
TORRUELLA, Circuit Judge. Timothy J. Duval and
Michael R. Doucette were each convicted of one count of being a
felon in possession of a firearm and ammunition, in violation of 18
U.S.C. § 922(g)(1). Duval and Doucette now appeal their
convictions and sentences. After careful consideration, we affirm.
I. Background
On January 27, 2003, Heath Woodward, then a resident of
Sanford, Maine, reported that his 1996 maroon Buick was stolen from
a convenience store parking lot. Woodward later testified that he
did not have any weapons in the car at that time.
In late January, Duval, Doucette, and Carlos Ramos (an
acquaintance of Duval and Doucette) spent a few nights at an
apartment rented by Robert Dyott. Dyott was an associate of Ramos
and unbeknownst to his guests, an informant for the Bureau of
Alcohol, Tobacco, and Firearms ("ATF"). Dyott would later testify
that while staying at his apartment, Doucette said that he and
Duval had stolen a car from a convenience store and that they had
some weapons in the trunk of that car that they wanted to "move"
(i.e., sell). Dyott also testified that Duval and Ramos were in
the room when Doucette said this, and that Duval did not disavow
Doucette's statement. According to Dyott, Doucette also said that
he and Duval were going to stay at a hotel the following night.
On January 31, 2003, a guest identifying himself as
"Carlos Ramos" registered at the Chelmsford Best Western for
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himself and a guest named "Paul Santos." They were assigned room
102. In filling out the registration form, "Ramos" identified his
car as a "96 maroon Buick." That same night, a call was placed
from Room 102 to a cell phone provided to Dyott by the ATF.
On February 1, 2003, Dyott spoke with Daniel Meade, an
ATF Agent, and told him that there was a stolen car with weapons at
the Chelmsford Best Western. The ATF notified the Chelmsford
police department, which sent Officers Tyros and Tine, joined by
Agent Meade, to the Best Western to investigate the suspected
stolen vehicle. Officer Tyros watched as a Caucasian male, later
identified as Duval, walked toward a maroon Buick carrying a black
object, and paused briefly by the trunk of the car. Tyros
testified that Duval noticed his presence and walked back to room
102.
Later that day, Agent Meade encountered Duval and
Doucette as they walked towards a gas station near the motel and
asked them to identify themselves. Upon learning their identities,
Agent Meade arrested Duval and Doucette on outstanding warrants.
Meade found the keys to the stolen Buick in Doucette's front
pocket. A search of the car revealed a Remington rifle, a
Remington shotgun, a Marlin rifle, and ammunition inside the trunk.
Investigators found no fingerprints in the trunk, on the firearms,
or the ammunition. However, Duval's and Doucette's prints were
recovered from objects found in the passenger compartment.
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On June 19, 2003, a complaint was filed with the United
States District Court for the District of Massachusetts charging
Duval and Doucette each with being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). The Government filed
an indictment against Duval and Doucette on September 3, 2003.
Both Duval and Doucette pleaded not guilty.
In an attempt to comply with Local Rule 116.1(c)(1) and
Brady v. Maryland, 373 U.S. 83 (1963), the Government initially
disclosed to Duval and Doucette in October 2003 that it would call
Dyott to testify at trial, and that Dyott was a Government
informant. The Government stated that Dyott had not been paid for
his cooperation and that there was no evidence that would otherwise
cast doubt on his credibility. But two months later, the
Government informed Duval and Doucette that Dyott had been paid
$5,150 for his cooperation since 1998. Then, in February 2004, the
Government sent a letter to Duval and Doucette stating that in
1998, it had dropped firearms charges against Dyott in exchange for
his cooperation. Eight months after that, the Government added
that it had discovered that Dyott had been paid an additional $600
in 1998 and 1999, and that Dyott had a long history of mental
illness.
On January 10, 2005, the Government moved to supplement
its witness list to include Carlos Ramos, the acquaintance of Duval
and Doucette who had allegedly rented the motel room for them. The
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Government disclosed in a letter to Duval and Doucette that Ramos
had a history of drug abuse, and had once cooperated with the
Government by making a "controlled buy." The following week, on
January 19, the Government sent a second letter to Duval and
Doucette stating that Ramos had told the Government that he did not
see any guns or hear either defendant make any reference to guns,
and that Ramos had told Agent Meade in 2003 that he had no
knowledge of a stolen car. Other than this disclosure, the
Government indicated that it had no additional exculpatory
information regarding Ramos.
Two days later, on January 21, 2005, the Government sent
another letter to Duval and Doucette. This time, the letter stated
that the Government did have exculpatory information regarding
Ramos, specifically that Ramos was offered leniency for his
participation in the firearms transaction in exchange for becoming
an informant. The letter also stated that Agent Meade had
interviewed Ramos in February 2003, but that Meade had not made any
notes of the interview. The letter stated that Meade had asked
Ramos about his renting a hotel room for Duval and Doucette, but
that he did not recall if he asked Ramos whether he was in the room
with Dyott, Duval, and Doucette in late January when Doucette was
alleged to have offered to sell Dyott weapons. The Government
continued to assert that Ramos had not been paid for his
cooperation on the Duval and Doucette case. On January 31, 2005,
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the Government sent yet another letter to Duval and Doucette,
amending its prior disclosure to add that Ramos had in fact
attempted to make at least three or four controlled purchases for
the ATF, and that Meade had given him money to buy telephone
calling cards. On the sixth day of the trial -- February 14, 2005
-- the Government disclosed to Duval and Doucette, seemingly
contrary to prior claims that Ramos had not been paid in connection
with the present case, that an entry on the ATF payment roster
indicated that Ramos had been paid $50 for "informant subsistence."
The entry included a reference to "Ducette [sic] & Duval."
Duval and Doucette moved to dismiss the indictment
because of a pattern of Government non-compliance with its
disclosure obligations. The Government opposed the dismissal of
the indictment, contending that neither Duval nor Doucette had
suffered prejudice as a result of the belated disclosures. The
court denied the motion to dismiss, stating that the Government had
violated its Brady obligations, but that neither Duval nor Doucette
were prejudiced.
Duval and Doucette also requested that the Government
provide the records of each individual payment to Dyott and Ramos
so they could determine if the Government had failed to disclose
any other payments to the witnesses. Instead, the Government
provided Duval and Doucette a summary of the payments made to
Dyott. Duval and Doucette claimed that the summary was
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insufficient given the history of belated disclosures by the
Government, and asked the court to compel production of the payment
records, or in the alternative, to review the records in camera, in
order to determine whether any additional payments had been made to
Dyott or Ramos. The court denied the request.1
In addition, Duval moved to exclude as inadmissible
hearsay Dyott's testimony that Doucette had offered firearms for
sale. The court denied Duval's motion to exclude without
prejudice, ruling that he could raise it again at trial if the
Government failed to show that Doucette's statement was either a
statement in furtherance of a conspiracy or an adoptive admission
by Duval.
The jury trial of Duval and Doucette began on February 7,
2005, and lasted eight days. At trial, Dyott testified that he had
met with Duval, Doucette, and Ramos in late January, that Doucette
had told him that he had firearms to sell, and that Duval said
nothing when he heard this. Dyott also disclosed on direct
examination his past and present drug habits, mental illness, and
criminal history. Duval and Doucette cross-examined Dyott as to
his cooperation with the ATF and payments that he received. In
addition, both Ramos and Agent Meade testified, along with various
other witnesses.
1
The request was made prior to trial and was renewed after the
Government's additional disclosure of exculpatory evidence on
February 14, 2005.
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During closing arguments, the Government noted that Duval
had been within fifteen miles of the location where the Buick was
stolen, that the Buick did not have firearms or ammunition in it
when it was stolen, that the Buick was later found at the hotel
where Duval and Doucette were staying, that Duval had suspiciously
approached the vehicle but turned away when he saw the police, that
Doucette had the keys to the vehicle, and that the trunk contained
firearms and ammunition. The Government then stated, "[Y]ou can
stop right there . . . because that evidence proves beyond a
reasonable doubt that [Duval and Doucette] were in knowing
possession [of the firearms and ammunition]. But there's more."
The Government then noted that Dyott had testified that Doucette
had admitted to possessing the firearms, and that Duval had
remained silent. The Government acknowledged Dyott's substantial
credibility problems but said, "Take Mr. Dyott's testimony,
discount it altogether. . . . [T]here is still no reasonable doubt
that these men possessed those guns and that ammunition." Duval
and Doucette then gave their closing arguments. Duval suggested
that "the Government cannot get around the testimony of Robert
Dyott. [If] Robert Dyott's testimony [is] not in this case, there
is no case." Doucette stated, "[I]f you don't believe Mr. Dyott's
testimony about a conversation he claims to have heard January 31st
of 2003, if you don't believe his testimony beyond a reasonable
doubt, you cannot convict in this case."
-8-
Duval and Doucette then asked the court to give two
instructions to the jury. First, they asked the court to instruct
the jury that, "if [you] do not believe Mr. Dyott's testimony
beyond a reasonable doubt [about his alleged conversation with
Doucette], [you] must acquit the defendant." Second, Duval and
Doucette asked the court to instruct the jury that "[o]ne cannot be
found guilty of possessing an object unless he has knowledge of its
presence. Knowledge alone, however, is not enough to prove
possession. Similarly, mere presence in the vicinity of the object
is insufficient to prove possession." The court refused both
instructions, and instead instructed the jury as follows:
To possess something means to have control or
dominion and control over something. It is
not necessarily the same as legal ownership.
The law recognizes different kinds of
possession. Possession includes both actual
and constructive possession. A person who
has direct, physical control of something on
or around his person is in actual possession
of it. A person who is not in actual
possession but who has the -- both the power
and intention to exercise control or dominion
and control over something is in constructive
possession of it. So whenever I use the word
"possession" in these instructions, I mean
both actual and constructive possession.
In considering the issue of possession in this
case it is not necessary for you to conclude
that a defendant in this case was in actual or
constructive possession of the firearm and/or
ammunition for a specified period of time.
More than one person can have control over the
same firearms and/or ammunition. If this is
so, then these people have what is called
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joint possession. For purposes of determining
a defendant's guilt, joint possession is not
different from sole possession.
While you may consider a defendant's proximity
to the firearms and/or ammunition in deciding
whether the government has established beyond
a reasonable doubt that he possessed those
items, mere proximity to the firearm and/or
ammunition or mere presence of a defendant in
the place where the firearm and/or ammunition
were found is insufficient by itself to
support a finding of possession.
. . .
The Government must also establish beyond a
reasonable doubt as to each defendant that he
knowingly possessed the firearms and/or
ammunition in question. The word "knowingly"
means that the act was done voluntarily and
intentionally and not because of ignorance,
mistake, or accident. Thus, in order to
convict a defendant, you must find beyond a
reasonable doubt that he knew he was in
possession of a firearm and/or ammunition and
that he knew that what he possessed was a
firearm and/or ammunition as we commonly use
these words.
The jury convicted both Duval and Doucette on the sole
count of being a felon in possession of a firearm. Presentence
reports were prepared for both defendants, suggesting that they
were subject to the Armed Career Criminals Act ("ACCA"), 18 U.S.C.
§ 924(e), which imposes a mandatory minimum sentence of fifteen
years on any person convicted of a firearms charge who has been
previously convicted of three violent felonies. Neither Duval's
nor Doucette's prior convictions were alleged before the jury, and
the jury made no finding as to them.
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Both Duval and Doucette challenged the court's ability to
impose a sentence under the ACCA unless the predicate convictions
had been proven to a jury. In addition, Duval stated that one of
the predicate convictions being used to support his eligibility for
an ACCA sentence, a conviction for assault and battery under Me.
Rev. Stat. Ann. tit. 17-A, § 207(1)(A), was neither a violent crime
nor a felony. The court rejected Duval's and Doucette's arguments
and found them both to be subject to the ACCA because they had each
been convicted of three prior felonies. The court imposed a
sentence of 180 months on Duval and 204 months on Doucette.
II. Discussion
Duval and Doucette appeal their convictions on the ground
that the Government failed to meet its obligation to disclose
exculpatory evidence under Brady, 373 U.S. 83, and the Jencks Act,
18 U.S.C. § 3500(b). In addition, Duval argues that Dyott's
testimony as to Doucette's statement during the January 30, 2003
meeting should not have been admitted against him because it was
inadmissible hearsay. Duval and Doucette both challenge the
district court's failure to give their requested jury instructions
regarding the elements of constructive possession and the
sufficiency of the evidence against them. Duval and Doucette also
bring a Sixth Amendment challenge to their ACCA-mandated sentences.
Finally, Doucette argues that he has not been convicted of three
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violent felonies, and thus is not subject to sentencing under the
ACCA. We discuss each of these claims in turn.
A. The Government's Disclosure Obligations
Duval and Doucette argue that the Government failed to
comply with its obligations under Brady and the Jencks Act to
disclose exculpatory and impeaching evidence regarding Dyott and
Ramos and that it should have been sanctioned accordingly. In
addition, because of the belated disclosure that Ramos had been
paid for his cooperation with the ATF, Duval and Doucette suggest
that the Government may have failed to disclose additional payments
made to Dyott and Ramos, and they argue that they were entitled to
in camera review of the Government's records of payments to
confidential informants. We review the district court's denial of
sanctions and in camera review for abuse of discretion. See United
States v. Rosario-Peralta, 175 F.3d 48, 55 (1st Cir. 1999); United
States v. Devin, 918 F.2d 280, 289 (1st Cir. 1990).
In Brady v. Maryland, the Supreme Court held that a
prosecutor has a duty to disclose, upon request, "evidence
favorable to an accused . . . where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." 373 U.S. at 87; see also Giglio v.
United States, 405 U.S. 150, 154 (1972) (reversing a conviction
where the Government failed to disclose that it had granted
immunity to a witness upon whose testimony the Government's case
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was heavily dependent). Likewise, under the Jencks Act, the
prosecution has an obligation to "provide, upon request, certain
prior statements made by trial witnesses . . . that . . . 'relate[]
to the subject matter as to which the witness has testified.'"
United States v. Schneiderhan, 404 F.3d 73, 79 (1st Cir. 2005)
(citing 18 U.S.C. § 3500(b)). To vacate a conviction because of a
Brady violation, a defendant must show that "the evidence at issue
must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued." United States v. Casas, 356 F.3d 104,
114 (1st Cir. 2004) (quoting United States v. Josleyn, 206 F.3d
144, 153 (1st Cir. 2000)). The test for a Jencks Act violation is
similar; we look to see whether the Government failed to disclose
prior statements by witnesses that relate to their testimony at
trial, and whether the nondisclosure was prejudicial.
Schneiderhan, 404 F.3d at 79. "When the issue is one of delayed
disclosure rather than of nondisclosure, however, the test is
whether defendant's counsel was prevented by the delay from using
the disclosed material effectively in preparing and presenting the
defendant's case." United States v. Ingraldi, 793 F.2d 408, 411-12
(1st Cir. 1986); see also United States v. Arboleda, 929 F.2d 858,
864 (1st Cir. 1991) (applying Ingraldi to allegations that the
Government belatedly disclosed Jencks Act materials).
-13-
We begin by noting that the Government's conduct during
the course of this prosecution was a clear violation of its Brady
and Jencks Act obligations. The Government "amended" its
disclosures of potentially exculpatory evidence no less than five
times, each time disclosing information that further cast doubt on
the testimony of Dyott and Ramos, two of the Government's principal
witnesses at trial. At least part of the problem appears to have
been that the ATF agent involved in the investigation kept scant
notes on conversations with Ramos that tended to exculpate his
prime suspects, Duval and Doucette -- a practice whose propriety is
questionable.2 Another part of the problem appears to have been
shoddy record-keeping by the ATF with regard to payments to
confidential informants. Finally, overly broad statements by the
Government that all exculpatory information had been disclosed may
have led Duval and Doucette to believe that the Government had in
fact disclosed all that it knew, when it had not. Whether the late
disclosures were the product of happenstance or of negligence is
unclear, but we take this opportunity to remind prosecutors that
disclosure of Brady and Jencks Act material is not a suggestion,
but a constitutional and statutory obligation.
2
Cf. United States v. Houlihan, 92 F.3d 1271, 1289 (1st Cir.
1996) ("Eschewing tape recordings and ordering law enforcement
agents not to take notes during pretrial interviews is risky
business -- and not guaranteed to redound either to the sovereign's
credit or to its benefit. By adopting a 'what we don't create can't
come back to haunt us' approach, prosecutors demean their primary
mission: to see that justice is done.").
-14-
We are mindful that not all convictions must be vacated
because of non-compliance with disclosure obligations; we must also
determine whether the late-disclosed information prejudiced Duval
and Doucette's ability to present their case. The first set of
evidence belatedly disclosed by the Government was impeachment
evidence regarding Dyott, namely that he had been treated for
mental illness and had been paid $5,750 and given leniency in a
prior case in exchange for his services as a confidential
informant. This information falls within the purview of Brady
because it could be used to impeach the reliability and motivation
of Dyott's testimony. However, the last of these disclosures
occurred in October 2004, nearly six months before the start of the
trial. This left sufficient time for Duval's and Doucette's
counsel to incorporate the information into their defense strategy.
While we do not condone the lateness of these disclosures, we do
not find that the district court abused its discretion in
determining that the lateness did not prejudice Duval and Doucette
in the preparation of their cases, and that sanctions were not
warranted.
The second set of late disclosures involved statements by
Ramos to Agent Meade that he had not heard Dyott and Doucette
discussing the arms sale; this statement falls within the scope of
material that must be disclosed under Brady because it casts doubt
on both the Government's claim that the conversation occurred, and
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the claim that Duval heard the statement and adopted the implicit
admission of criminal activity by remaining silent. It also falls
within the ambit of the Jencks Act, as it is a prior statement by
a witness that relates to his trial testimony. However, as the
Government points out, Ramos remained missing until January 2005,
and it is unclear that Duval and Doucette could have located him
before then. Furthermore, Ramos admitted during cross-examination
that he had told Meade that he did not remember hearing anything
about the sale of arms at the motel, and that he did not tell Meade
anything about the stolen car when they met in February 2003.
Thus, even assuming that Doucette and Duval could have located
Ramos before that time and interviewed him regarding his statement,
it is unclear what benefit this would have been to the defense
strategy. See Casas, 356 F.3d at 115 (finding no prejudice where
defense counsel had an opportunity to cross-examine witness about
belatedly disclosed cooperation agreement). Again, we do not find
that the district court abused its discretion in determining that
neither Duval nor Doucette were prejudiced by the late disclosure
of Ramos's statement, and thus that sanctions were therefore not
warranted.
Finally, Duval and Doucette point to the mid-trial
disclosure that the Government may have paid Ramos $50 in
connection with his cooperation in another case. The Government
has stated that it has no further records of payment, but Duval and
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Doucette, having observed a pattern of delayed disclosures, suggest
otherwise. Thus, Duval and Doucette suggest that the proper remedy
for this late disclosure is to give them the opportunity to examine
the Government's confidential informant payment records to
determine if other payments have been made to Ramos.3 In the
alternative, Duval and Doucette propose that we direct the court to
engage in an in camera review of the records to determine whether
additional exculpatory material exists. Duval and Doucette suggest
that their case is similar to United States v. Rosario-Peralta,
175 F.3d 48 (1st Cir. 1999). In that case, various Government
agencies had been pursuing a boat at sea that was observed dumping
drugs overboard. Id. at 50-51. The principal defense theory was
that the pursuing vessels had lost track of the boat engaged in the
dumping, and that they had mistakenly seized the defendants' boat
instead. Id. at 55. Accordingly, the defendants requested
communication logs from the Government, which they argued would
conclusively establish that their boat could not have been the same
boat observed dumping drugs overboard. Id. at 54. We noted that
the information in the logs was "critical to defendants' theory and
was a disputed issue at trial," and that "we do not see how [the
logs] could fail to be relevant." Id. at 55. Thus, we ordered in
3
Assuming that they found additional exculpatory information,
Duval and Doucette argue that they would be entitled to a new trial
or dismissal of the indictment altogether.
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camera review of the logs to determine whether they contained
potentially exculpatory evidence. Id. at 57.
Two principal differences between the present case and
Rosario-Peralta support our conclusion that the district court did
not abuse its discretion in failing to order in camera review of
the Government's payment logs. First, the defendants in Rosario-
Peralta made a clear showing that the evidence they sought in fact
existed; the Government had acknowledged the existence of the
communication logs and that they dealt with the defendants' case,
but had argued that they were cumulative of other evidence
presented. Here, Duval and Doucette have merely postulated a
theory that additional records of payment to Ramos or Dyott exist;
albeit a theory that was fostered by the Government's pattern of
non-disclosure. While we emphasize that the Government's denial
that additional Brady or Jencks Act material exists is not
dispositive to our analysis, Duval and Doucette have not done much
better than to take a shot in the dark. This is insufficient to
establish the likelihood of a Brady violation, United States v.
Caro-Muñiz, 406 F.3d 22, 30 (1st Cir. 2005), and as such is
certainly insufficient to require in camera review.
Second, the material sought in Rosario-Peralta was
undisputably directly relevant to the key issue in the case: the
tapes would either potentially reveal that the defendants' boat had
been the one pursued or that the Government had, in fact, lost
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track of the boat in question. In Duval and Doucette's case, even
if there were an adequate showing that records of additional
payments made to Ramos or Dyott existed, they would not bear
directly on the guilt or innocence of either defendant. Although
the records would have some utility as impeachment evidence, Duval
and Doucette were already aware that Ramos and Dyott had accepted
payments from the ATF.4 Thus, the records would have been
cumulative of other evidence, and it is unclear that their addition
would have "put the whole case in such a different light as to
undermine confidence in the verdict." Casas, 356 F.3d at 114.
Accordingly, the court did not err in denying Duval and Doucette's
request to review the Government's records. See United States v.
Nelson-Rodríguez, 319 F.3d 12, 35 (1st Cir. 2003) (holding that
neither Brady nor the Jencks Act "provides grounds for relief
unless the exclusion or failure to produce prejudiced [the]
defense").
In short, while we disapprove of the practice of belated
disclosures of Brady and Jencks Act material, we do not find that
the Government's conduct in this case was so prejudicial that the
district court abused its discretion in denying sanctions.
4
Our belief that Duval and Doucette were not prejudiced is
bolstered by the fact that the known payments to Ramos were not
used to impeach him at trial.
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B. Use of the Adoptive Admission Against Duval
Duval's next claim of error concerns the district court's
decision to admit against him the testimony of Dyott, who claimed
that Doucette said that he and Duval wanted to sell firearms in
their possession. The Government claimed that Dyott's testimony
implicated Duval because Duval was present when the incriminating
statement was made yet did not attempt to disassociate himself from
it, and thus was admissible as an adoptive admission by an opponent
party. See Fed. R. Evid. 801(d)(2)(B).5 On January 27, 2005,
Duval filed a written motion to exclude the use of Dyott's
testimony as inadmissible hearsay. On February 4, 2005, the
district court denied Duval's pretrial motion without prejudice to
its renewal during trial. At the Government's request, the
statement was admitted at trial.
While the admissibility of evidence is ordinarily
reviewed for abuse of discretion, United States v. Barrow, 448 F.3d
37, 42 (1st Cir. 2006), we review the case at bar for plain error
because Duval "failed to interpose a contemporaneous objection" at
trial. Udemba v. Nicoli, 237 F.3d 8, 16 (1st Cir. 2001); see also
United States v. Desimone, No. 05-2314, 2007 WL 1633556 at *5 (1st
Cir. June 7, 2007) (reviewing the admission of hearsay for plain
5
The Government also claimed that Doucette's statement was
admissible as a statement in furtherance of a conspiracy. Because
we find this statement admissible as an adoptive admission, we need
not reach this issue.
-20-
error). "Under the plain error standard, an appellant must
demonstrate that (1) there was an error; (2) the error was plain;
and (3) the error affected substantial rights." United States v.
Tom, 330 F.3d 83, 93 (1st Cir. 2003) (quoting Johnson v. United
States, 520 U.S. 461, 466-67 (1997)). In addition, the error must
have "seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings." Id. (quoting Johnson, 520
U.S. at 466-67).
We have long recognized "so-called adoptive admissions,
including admissions by silence or acquiescence," as admissible
against a party-opponent pursuant to Federal Rule of Evidence
801(d)(2)(B). United States v. Fortes, 619 F.2d 108, 115 (1st Cir.
1980). In United States v. Miller, we elaborated, stating that "a
party's agreement with a fact stated by another may be inferred
from (or 'adopted' by) silence . . . when (i) a statement is made
in a party's presence, (ii) the nature of the statement is such
that it normally would induce the party to respond, and (iii) the
party nonetheless fails to take exception." 478 F.3d 48, 51 (1st
Cir. 2007). Alleged admissions by silence may be properly
submitted to the jury only if "a reasonable jury could properly
find the ultimate fact in favor of the proponent of the evidence."
United States v. Barletta, 652 F.2d 218, 219 (1st Cir. 1981).
In the present case, Dyott testified as to the
incriminating nature of Doucette's statement and placed Duval at
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the scene of the conversation. Duval argues that these
foundational facts -- which were proffered by the Government --
were insufficient to prove that he heard the statement, and thus
for it to be admitted as an adoptive admission. While in some
cases, the paucity of facts introduced at trial precludes any
reasonably grounded finding of actual acquiescence, see, e.g.,
United States v. Moore, 522 F.2d 1068, 1076 (9th Cir. 1975), we
have left the resolution of substantial yet conflicting testimony
for the jury, see, e.g., United States v. Wiseman, 814 F.2d 826,
829 (1st Cir. 1987). This same principle applies to cases in which
the facts give rise to conflicting but plausible inferences.
In the present case, the trial court properly found that
the Government laid an adequate foundation for the admission of
Dyott's testimony by offering testimony that the conversation
between Dyott and Doucette took place in a small room, and that
Duval was in that room, testimony from which it could be reasonably
inferred that Duval heard Doucette's statements. Although Duval
offered the contrary testimony of Ramos, who stated that he did not
hear the conversation between Dyott and Doucette, the ultimate
question of whether to believe Ramos's testimony and to infer from
it that Duval also did not hear Doucette was properly left to the
jury. Because the court properly found that a foundation existed
for the admission of Dyott's testimony against Duval, we see no
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basis for concluding that the district court erred, plainly or
otherwise, in admitting his testimony against Duval.
C. Instructional Errors
Duval and Doucette argue that the court erred in denying
their request for two jury instructions. First, Duval and Doucette
contend that the court erroneously denied their request to instruct
the jury on the sufficiency of evidence against them. Second,
Duval and Doucette argue that the court erred in refusing to give
their requested instruction on the elements of constructive
possession.
The standard of review varies with respect to claims of
instructional error. See United States v. Figueroa-Encarnación,
343 F.3d 23, 29 (1st Cir. 2003) (noting this phenomenon). Here,
however, the claims of error are such that we review the denial of
the requested jury instructions for abuse of discretion. Fryar v.
Curtis, 485 F.3d 179, 183 (1st Cir. 2007). In considering whether
the district court abused its discretion, we look to see whether
the requested instruction was "(1) correct as a matter of
substantive law, (2) not substantially incorporated into the charge
as rendered, and (3) integral to an important point in the case."
White v. N.H. Dept. of Corr., 221 F.3d 254, 263 (1st Cir. 2000).
1. The "Constructive Possession" Instruction
Duval and Doucette claim that the court's instructions on
constructive possession were insufficient because it failed to give
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their requested instruction that "knowledge alone, however, is not
enough to prove possession. Similarly, mere presence in the
vicinity of the object is insufficient to prove possession." Duval
and Doucette suggest that by failing to give this instruction, the
jury was allowed to equate knowledge with possession, and that
knowledge alone is not sufficient to establish constructive
possession.
Applying the three-factor test set forth in White, 221
F.3d at 263, we note that there does not appear to be any dispute
that Duval and Doucette's requested instruction was correct as a
matter of law: mere presence in the vicinity of an object is
insufficient to prove constructive possession of that object, see
United States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992), and
knowledge of an object's location, without more, is insufficient to
establish possession of that object, see United States v. McLean,
409 F.3d 492, 501 (1st Cir. 2005) ("[T]here must be some action,
some word, or some conduct that links the individual to the
contraband and indicates that he had some stake in it, some power
over it." (quoting In re Sealed Case, 105 F.3d 1460, 1463 (D.C.
Cir. 1997)). Furthermore, there is little question that the issue
of constructive possession was integral to the case.
The district court did not abuse its discretion in
denying the requested instruction, however, because the law of
constructive possession was "substantially incorporated into the
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charge as rendered." White, 221 F.3d at 263. We have said before
that a court is not obligated to "follow the exact form and wording
of the defendant's proposed instructions." United States v.
Gibson, 726 F.2d 869, 874 (1st Cir. 1984). Here, the court very
clearly instructed the jury that to find constructive possession it
needed to find both "power and intention to exercise control or
dominion and control over something," and that Defendants
"knowingly possessed the firearms and/or ammunition in question."
Thus, it is not the case that the jury was invited to convict based
on mere knowledge of the firearms; rather, the jury was plainly
instructed that it needed to find knowing possession. Because the
court's instructions adequately expressed the law of constructive
possession, we detect no error in its denial of Defendant's
requested instruction.
2. The "Sufficiency" Instruction
Duval and Doucette also argue that the court erred by
refusing to instruct the jurors that, "if they do not believe Mr.
Dyott's testimony beyond a reasonable doubt [that Doucette had told
Dyott about the stolen guns], . . . they must acquit the
defendant." As we have already explained, the court correctly gave
detailed instructions on the elements of the offenses with which
Duval and Doucette were charged and a defendant is not entitled to
an instruction "on every particular that conceivably might be of
interest to the jury." Rosario-Peralta, 199 F.3d at 567.
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Nevertheless, Duval and Doucette put a new twist on their
claim, arguing that the requested instruction was necessary because
the prosecutor suggested on closing that, in fact, there was
sufficient evidence apart from Dyott's testimony to convict Duval
and Doucette. In analyzing this claim of prosecutorial misconduct,
our first step is to determine whether the prosecutor did in fact
make "improper statements" to the jury on closing. See United
States v. Lowe, 145 F.3d 45, 50 (1st Cir. 1998) (reaching other
elements of test for prosecutorial misconduct only after
determining that statements made by the prosecutor were
"improper").
We set forth the standard for establishing constructive
possession in Wight: the Government must show "that the defendant
had dominion and control over the area where the contraband was
found." 968 F.2d at 1397. While circumstantial evidence can be
used to satisfy this burden, "mere presence or association with
another who possessed the contraband is insufficient to establish
constructive possession," id., nor is it sufficient to show only
that a defendant had access to the weapons, see United States v.
Kelso, 942 F.2d 680, 682 (9th Cir. 1991). "[T]he ability and
intent to exercise dominion and control over the firearm or area
where it is located," however, is sufficient to support a finding
of constructive possession. United States v. Robinson, 473 F.3d
387, 399 (1st Cir. 2007).
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The prosecutor argued to the jury that, even if they
disregarded Dyott's testimony (which had been heavily impeached at
trial), the remaining evidence was sufficient to convict. Duval
and Doucette argue that the Government's evidence was insufficient,
as a matter of law, for the jury to infer constructive possession
because apart from Dyott, there was no direct evidence that they
knew that the firearms were in the trunk. In support of this
claim, Duval and Doucette provide a litany of supposedly analogous
cases in which findings of constructive possession were overturned.
See, e.g., United States v. Reece, 86 F.3d 994, 996 (10th Cir.
1996) (holding that "[w]here possession is not clear," constructive
possession requires "some nexus, link, or other connection between
the defendant and the contraband."); United States v. Soto, 779
F.2d 558, 560 (9th Cir. 1986) ("It is well established that mere
presence as a passenger in a car from which the police recover
weapons does not establish possession. The mere proximity of a
weapon to a passenger in a car goes only to its accessibility, not
to the dominion or control which must be proved to establish
possession." (citations omitted)). Furthermore, Duval and Doucette
emphasize that here the guns were hidden in the trunk of their car
rather than in the passenger compartment, which they argue
distinguishes their situation from prior appeals where we upheld
jury inferences of constructive possession. See, e.g., United
States v. Liranzo, 385 F.3d 66, 69-70 (1st Cir. 2004) (affirming
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defendant's conviction where the "precarious, angled position" of
weapon suggested it was stashed after car came to stop, and
defendant was only person observed moving.). Lastly they aver
that, as in Kelso, access to a place where a firearm is located is
insufficient to infer knowledge that the firearm is there. 942
F.2d at 682. Absent Dyott's testimony, Duval and Doucette's
argument goes, the Government did not offer sufficient evidence to
prove that they were aware of the contents of the trunk.
We agree that the evidence could have supported a jury
inference that Duval and Doucette did not constructively possess
the weapons. However, that is not the question on appeal. The
jury found Duval and Doucette guilty, and thus we must determine
whether, as a matter of law, the prosecutor was incorrect when he
stated that the jury could infer from the evidence presented that
Duval and Doucette constructively possessed the firearms found in
the trunk even if they disregarded Dyott.
We conclude that there was sufficient evidence apart from
Dyott's testimony for the jury to infer that Duval and Doucette
constructively possessed the firearms found in the trunk, and thus
that the prosecutor's arguments were not improper. Like the
defendants in Liranzo, the evidence suggests Doucette and Duval
exercised "exclusive dominion and control over the location of the
gun." 385 F.3d at 70. Doucette had the keys when the two were
apprehended, Duval appeared to avoid opening the trunk upon sight
-28-
of police officers, and the guns were not in the car when it was
stolen. Although much of the Government's evidence was
circumstantial, we have held that circumstantial evidence may
support a finding of constructive possession. United States v.
McFarland, 445 F.3d 29, 31 (1st Cir. 2006).
Accordingly, this is not a situation where the evidence
showed only a defendant's "mere proximity" to weapons. See Soto,
779 F.2d at 560-61; United States v. Madkins, 994 F.2d 540, 542
(8th Cir. 1993) (holding that it was unreasonable for a jury to
infer constructive possession of a weapon from the fact that the
defendant was found working under the hood of a car where the
weapon was found). Duval and Doucette's reliance on United States
v. Blue, 957 F.2d 106 (4th Cir. 1992), is similarly misplaced. In
Blue, the Fourth Circuit overturned a conviction where the only
evidence presented was the presence of a gun under the defendant-
passenger's seat and testimony that the defendant dipped his
shoulder as the police officer approached the vehicle. Id. at 107-
08. Here, not only was there evidence that guns were in the trunk
of the stolen car and that Duval turned away from the trunk when he
noticed a police officer, but also that Doucette had the keys to
the trunk, that Duval and Doucette had stolen the car and had
exclusive possession of it thereafter, and that they had
suspiciously registered under a false name at the Chelmsford motel,
where the car and the guns were eventually found. This quantum of
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evidence was legally sufficient for the jury to infer that Duval
and Doucette constructively possessed the weapons at issue.
Thus, because there was sufficient evidence apart from
Dyott's testimony that Defendants constructively possessed the
weapons found in their car, we find no error in the denial of a
jury instruction to the contrary.
D. Constitutional Challenges to the ACCA
Duval and Doucette both argue that the Government's
failure to plead and prove their prior convictions to the jury
renders ACCA sentences invalid under the Sixth Amendment. We
review constitutional challenges to the ACCA de novo. United
States v. McKenney, 450 F.3d 39, 45 (1st Cir. 2006).
The Supreme Court rejected this very argument in
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), and
has since reiterated its position that the fact of a prior
conviction is exempt from the general rule that a jury must find
any fact that raises a sentence above the statutorily-prescribed
maximum, see United States v. Booker, 543 U.S. 220, 244 (2005);
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We continue to
be bound by Supreme Court precedent on this point, and as such, we
must reject Duval and Doucette's Sixth Amendment challenge to the
imposition of an ACCA sentence. See, e.g., McKenney, 450 F.3d at
46; United States v. Coplin, 463 F.3d 96, 105 (1st Cir. 2006).
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E. Duval's Challenges to the ACCA Sentence
In addition to his constitutional arguments, Duval
contends that he should not be subject to an ACCA sentence because
he has not been convicted of three violent felonies. The ACCA
imposes a mandatory minimum sentence on defendants convicted of
"three previous convictions by any court . . . for a violent
felony." 18 U.S.C. § 924(e)(1). A violent felony is defined as
"any crime punishable by imprisonment for a term exceeding one year
. . . [that] has as an element the use, attempted use, or
threatened use of physical force against the person of another
. . . or otherwise involves conduct that presents a serious
potential risk of physical injury to another." Id. § 924(e)(2)(B).
In determining whether a conviction was for a violent felony, the
trial court may look "only to the fact of conviction and the
statutory definition of the prior offense." Taylor v. United
States, 495 U.S. 575, 602 (1990). In Shepard v. United States, the
Supreme Court recognized that where a defendant had plead guilty to
a prior crime, a court could also examine a "statement of factual
basis for the charge, shown by a transcript of plea colloquy or by
written plea agreement presented to the court, or by a record of
comparable findings of fact adopted by the defendant upon entering
the plea." 544 U.S. 13, 20 (2005) (citation omitted).
There appears to be no dispute among the parties that
Duval had been convicted of at least two violent felonies prior to
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his conviction for the instant offense. Thus, the dispute centers
around Duval's third conviction, a conviction for assault and
battery under Me. Rev. Stat. Ann. tit. 17-A, § 207, which provides
in part that it shall be a crime for a person to "intentionally,
knowingly or recklessly cause[] bodily injury or offensive physical
contact to another person."6 Ordinarily, simple assault and
battery is punishable in Maine as a "Class D" offense, id., which
provides for a maximum sentence of up to one year in prison, id.
§ 1252(2). However, because Duval had previously been convicted of
two misdemeanor assaults, he was sentenced under Maine's recidivist
offender statute, making Duval's conviction a "Class C" offense,
id., which provided for a maximum sentence of five years in prison,
id. § 1252 (4-A). Duval offers two arguments as to why his third
conviction should not qualify as a violent felony for the purposes
of the ACCA.
1. The Recidivist Sentencing Enhancement
First, Duval argues that because assault is usually
punishable as a Class D felony with a maximum term of less than one
year in prison, his conviction was for a misdemeanor, and thus not
a "felony," even though the sentence he received was five years
because of Maine's recidivist sentencing statute. Thus, Duval asks
6
Because we are unaware of additional information regarding
Duval's conviction that could be considered under Shepard, we must
rely only on the fact of conviction and the statutory definition of
the crime for which Duval has been convicted. See United States v.
Walter, 434 F.3d 30, 38 (1st Cir. 2006).
-32-
us to decide whether the word "crime" as used in 18 U.S.C. § 924
(e)(2)(B) means criminal conduct (assault) or criminal conduct in
combination with certain attendant circumstances (assault plus
recidivism). We ordinarily review de novo a claim that a defendant
is not subject to the ACCA de novo. United States v. Mastera, 435
F.3d 56, 59 (1st Cir. 2006).
This question is a novel one in this circuit, but has
been addressed by other courts. Duval urges us to adopt the
reasoning of the Ninth Circuit in United States v. Corona-Sánchez,
291 F.3d 1201 (9th Cir. 2002) (en banc). In Corona-Sánchez, the
Ninth Circuit held that under Taylor's categorical approach, the
proper analysis for determining whether a crime was a "felony"
would be to "consider the sentence available for the crime itself,
without considering separate recidivist sentencing enhancements."
Id. at 1209. Thus, the Ninth Circuit found that a prior conviction
for petty theft in California, which provides for a maximum
sentence of six months, Cal. Penal Code § 490, could not be a
felony conviction even though the defendant had been subject to
California's repeat offender statute which increased the maximum
term to one year, id. § 666. Corona-Sánchez, 291 F.3d at 1210.
Also supporting Duval's position is a line of decisions which hold
that the ACCA, itself a recidivist sentencing statute, does not
alter the nature of the underlying offense, but simply changes the
sentencing structure for it. See, e.g., United States v. McGatha,
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891 F.2d 1520, 1521-25 (11th Cir. 1990) (concluding that the ACCA
is simply a sentencing enhancement provision); United States v.
Rumney, 867 F.2d 714, 718 (1st Cir. 1989) ("[T]he three felonies
provision is for sentence enhancement and is not an element of a
heightened crime.").
The Government, on the other hand, urges us to adopt the
reasoning of the Fifth and Seventh Circuits. In Mutascu v.
Gonzáles, the Fifth Circuit found that where a defendant had been
previously convicted and sentenced under California's recidivist
sentencing statute, the ultimate conviction was not merely for
"petty theft," but rather for "petty theft with prior jail term."
444 F.3d 710, 712 (5th Cir. 2006). Thus, the Fifth Circuit refused
to "atomize" a sentence into its recidivist and predicate
components, and held instead that the relevant sentence for the
purposes of determining whether a crime was a felony was the
sentence "ordered by a court of law." Id. (quoting 8 U.S.C. § 1101
(a)(48)(B)). Likewise, the Seventh Circuit has held that
recidivist sentencing statutes may be used to determine the maximum
sentence for a prior conviction when deciding whether a prior drug
conviction constituted a "serious drug offense" for the purposes of
the ACCA. United States v. Henton, 374 F.3d 467, 469-70 (7th Cir.
2004). The Fourth Circuit has suggested a similar conclusion,
although it noted that the maximum sentence imposable under a
recidivist sentencing statute might depend on compliance with
-34-
additional safeguards codified in state law. United States v.
Williams, 326 F.3d 535, 539-40 (4th Cir. 2003).
The parties also point to recent Supreme Court decisions
on sentencing issues to support their positions. In Apprendi, the
Supreme Court very explicitly stated that "recidivism 'does not
relate to the commission of the offense' itself." 530 U.S. at 496
(quoting Almendarez-Torres, 523 U.S. at 230). Duval contends that
this statement supports his argument that his recidivist sentence
was the product of a sentencing enhancement and not a change in the
underlying offense. The Government points us to Ewing v.
California, in which the Court, reviewing California's recidivist
sentencing statute, explained that the petitioner had not been
convicted of "merely 'shoplifting three golf clubs.' Rather, Ewing
was convicted of felony grand theft for stealing nearly $1,200
worth of merchandise after previously having been convicted of at
least two 'violent' or 'serious' felonies." 538 U.S. 11, 28
(2003). This, the Government argues, supports its argument that
recidivist sentencing statutes in effect create new "recidivist
crimes," which might be construed as felonies even if the
underlying offense was a misdemeanor.
These arguments highlight two conundrums. The first is
that by using state-law definitions of crimes to determine
sentencing on federal offenses, Congress may have allowed states to
disturb the balance struck in the ACCA: repeat offenders would be
-35-
subject to higher sentences, but only if they had committed three
violent felonies. For example, it appears that under Maine's
recidivist sentencing statute, a person might be convicted of three
violent "felonies" (and thus sentenced under the ACCA) even if he
had only been twice convicted of certain felony offenses (robbery)
and once of a misdemeanor offense (assault). This would seem to
disturb Congress's determination that the ACCA should be applied
only to hardened criminals, i.e., those who have committed three
(rather than two) crimes whose nature is so serious that they are
punishable as felonies.
Second, this case highlights the ambiguous status
accorded to recidivist sentencing statutes. The Government asks us
to classify Duval's third offense as "recidivist assault," an
offense that is different than non-recidivist assault. However, in
light of the Supreme Court's holding in Apprendi that a maximum
sentence may not be raised based on elements of the offense not
pleaded and proven to a jury, 530 U.S. at 490, this calls into
question Almendarez-Torres's holding that, in fact, prior
convictions need not be proven to a jury before they are used to
increase a sentence beyond the statutory maximum. 523 U.S. at 239-
247 (rejecting argument that recidivism is an element of a crime
that needs to be plead and proven to a jury); see Rangel-Reyes v.
United States, 126 S. Ct. 2873, 2874 (2006) (Thomas, J., dissenting
-36-
from denial of certiorari) (urging the Court to overrule
Almendarez-Torres for this reason).
In spite of the difficult questions that the Government's
position presents, we are ultimately persuaded that logic and
precedent support the conclusion that Duval was convicted of
"recidivist assault," and thus was convicted of a felony. First,
although Apprendi stated that recidivism did not necessarily relate
to the commission of an offense, 530 U.S. at 496, this does not
mean that an offense could not be defined with respect to
recidivism. In fact, since Apprendi was decided, Ewing construed
a conviction under California's repeat offender statute as
recidivist theft, 538 U.S. at 28, and more recently, in López v.
Gonzáles, the Court noted that state drug possession statutes
correspond to federal drug statutes, including "possession of
cocaine base and recidivist possession," 127 S. Ct. 625, 630 n.6
(2006) (emphasis added). We acknowledge that these holdings create
some tension with Almendarez-Torres, but as Justice Thomas noted in
his dissent from denial of certiorari in Rangel-Reyes, the Supreme
Court is "the only court authorized to" overturn that decision.
126 S. Ct. at 2875.
Furthermore, although there are some anomalies in having
Maine's recidivist offender statute affect the operation of the
ACCA's recidivist offender scheme, this is not a unique situation.
A single conviction in Maine for simple assault is ordinarily not
-37-
treated as a felony for ACCA purposes because it carries a penalty
of less than one year, Me. Rev. Stat. Ann. tit. 17-A, §§ 207,
1252(2), whereas a conviction for the exact same conduct in
Massachusetts would be treated as a felony because Massachusetts
law punishes assault by up to two and a half years, Mass. Gen. Laws
ch. 265, § 13A(a). Moreover, states use different characteristics
to categorize the same crimes as felonies or misdemeanors. Maine
makes assault a felony if it is accomplished with the use of a
firearm, see State v. Gilbert, 473 A.2d 1273, 1275 n.1 (Me. 1984)
("Criminal threatening is a Class D crime, which, when committed
with use of a dangerous weapon, is enhanced to a Class C
offense."), whereas Oregon uses the presence of a victim's minor
child to turn a simple assault into a felony, see United States v.
Moreno-Hernández, 419 F.3d 906, 910, 915 (9th Cir. 2005) (also
noting that a conviction with such an enhancement would qualify as
a felony crime of violence). It appears that Congress implicitly
accepted such inconsistencies in the application of the ACCA
because it was concerned about federalism and wanted to preserve
the state's role in defining, enforcing, and prosecuting
essentially local crimes:
In "enhancing" this [federal firearms] offense
with [ACCA]-type sanctions, if the defendant
has been convicted three times of robbery or
burglary, we are "enhancing" an existing
Federal crime, which would alleviate many of
the problems associated with [the ACCA] such
as the issue of a local D.A. veto or the
difficulties encountered by Federal courts in
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applying State robbery and burglary laws in
Federal prosecutions.
H.R. Rep. No. 1073 at 5, reprinted in 1984 U.S.C.C.A.N. 3665. We
can only assume that Congress thought that these federalism
concerns would outweigh whatever inconsistencies arose.
In addition, as one of the dissents in Corona-Sánchez
pointed out:
Raising an offense from a misdemeanor to a
felony has effects far beyond the extra time
defendant might serve. While employers may be
willing to overlook a misdemeanor in potential
employees, they are much less likely to hire
convicted felons, especially for positions of
trust and responsibility. Suffering a felony
conviction, rather than a misdemeanor, can
also have serious effects on personal
relationships and reputation in the community.
Moreover, under [California] law, felons
suffer a variety of limitations and
disabilities that misdemeanants do not.
Misdemeanor sentences are served in local
jails, while felony time is spent in state
prison. For the rest of their lives, felons
(but not misdemeanants) are denied the right
to vote . . . and the right to bear arms.
Corona-Sánchez, 291 F.3d at 1219 (Kozinski, J., dissenting in part
and concurring in part) (internal citations omitted). So too here.
See, e.g., Me. Rev. Stat. Ann. tit. 17-A, § 1252(1)(A)(2)
(specifying that a class C felon sentenced to more than nine months
in jail are committed to the Department of Corrections); Me. Rev.
Stat. Ann. tit. 8, § 275-D(5)(D)(2) (listing Class C felony
conviction as a ground for denying an off-track betting facility
license); 28 Me. Rev. Stat. Ann. tit. 28-A, § 653(2)(A) (listing
-39-
Class C felony conviction as a ground for denying liquor license).
It would be unusual if a court could not consider Duval's
conviction as a felony for the ACCA when Maine law would recognize
it as such for state-law purposes.
If Congress finds fault in the pattern of inconsistent
sentences mandated by the ACCA, it is within its power to amend it.
However, as it presently stands, the ACCA defines a felony as "any
crime punishable by imprisonment for a term exceeding one year."
18 U.S.C. § 924(e)(2)(B). Because Duval was convicted of a crime
which provided for punishment of up to five years, he has been
convicted of a felony for the purposes of the ACCA.
2. Is Assault a Violent Crime in Maine?
Duval also argues for the first time on appeal that even
if his assault conviction was for a felony, it was not for a
violent crime. Duval argues that because the charging documents
and plea agreement provide no indication as to the nature of the
assault that he committed, we must find that he engaged in the
minimum level of culpable conduct punishable under the assault
statute, i.e., "recklessly causing offensive physical contact," and
that this conduct would not qualify as a violent crime. Because
Duval did not raise this objection to his sentence below, we review
that objection for plain error. United States v. Bennett, 469 F.3d
46, 51 (1st Cir. 2006). Plain error requires that the defendant
show that "(1) that an error occurred (2) which was clear or
-40-
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity, or
public reputation of judicial proceedings." Id. (quoting United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
We detect no plain error in the district court's
determination that a conviction in Maine for simple assault
constitutes a crime of violence for the purposes of the ACCA. In
United States v. Nason, we explicitly stated that "both variants of
assault regulated under Maine's general-purpose assault statute
necessarily involve the use of physical force," and concluded that
a conviction in Maine for simple assault qualified as a crime of
domestic violence for the purposes of 18 U.S.C. § 922(g)(9). 269
F.3d 10, 21 (1st Cir. 2001). Nason is the only case cited by
either party to have interpreted the Maine assault and battery
statute, and we cannot distinguish it in any meaningful way from
the circumstances of Duval's case. Until such time as we revisit
Nason en banc, see United States v. Allen, 469 F.3d 11, 17 (1st
Cir. 2006) (noting that, absent extraordinary circumstances, three-
judge panels are bound by prior circuit panel decisions), we are
bound to apply its holding that even "offensive contact"
constitutes a violent felony under Maine's assault and battery
statute.7
7
Although my colleagues would prefer not to address the issue, I
consider that circuit law on this point is in some disarray. We
have strongly suggested that a conviction under the Massachusetts
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III. Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
assault and battery statute -- which is similar to the Maine
statute -- would not constitute a crime of violence for purposes of
the ACCA absent evidence that the conviction was for a "violent"
assault, rather than for an offensive contact. See United States
v. Mangos, 134 F.3d 460, 464 (1st Cir. 1998) (noting that the
Massachusetts assault and battery statute "involves different types
of offenses, some arguably violent and some not"); United States v.
Fernández, 121 F.3d 777, 779 (1st Cir. 1997) ("[B]oth violent and
non-violent conduct is covered by the [Massachusetts assault and
battery] statute."). I think that the circuit might do better to
resolve this disarray in light of the fact that the imposing a
sentence under ACCA often makes a world of difference to the amount
of prison time a defendant receives. See James v. United States,
127 S. Ct. 1586, 1602 (2007) (Scalia, J., dissenting) ("Imprecision
and indeterminacy are particularly inappropriate in the application
of a criminal statute. Years of prison hinge on the scope of
ACCA's residual provision, yet its boundaries are ill defined.").
-42-
United States v. Duval
Court: Court of Appeals for the First Circuit
Date filed: 2007-08-07
Citations: 496 F.3d 64
Copy Citations