United States Court of Appeals
For the First Circuit
No. 05-2624
UNITED STATES OF AMERICA,
Appellee,
v.
GARY C. PRATT,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez, Circuit Judge,
and Shadur,* Senior District Judge.
Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Terry L. Ollila, with whom Thomas P. Colantuono, United States
Attorney, and Aixa Maldonado-Quiñones, Assistant United States
Attorney, were on brief, for appellee.
August 8, 2007
___________________
* Of the Northern District of Illinois, sitting by designation.
LIPEZ, Circuit Judge. Gary Pratt appeals his conviction
for being a felon in possession of a handgun under 18 U.S.C.
§ 922(g)(1) and contests an enhanced sentence imposed under the
Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). He argues
that his conviction was not supported by sufficient evidence
because the government failed to introduce into evidence a
stipulation as to two elements of his offense. He also contends
that he did not qualify for an enhanced sentence under the ACCA
because he had not been convicted of three violent felonies. We
affirm the conviction and sentence.
I.
We state the facts "as the jury could have found them,
drawing all inferences in the light most consistent with the jury
verdict." United States v. Milkiewicz, 470 F.3d 390, 392 (1st Cir.
2006). Immediately following his release from prison, Pratt lived
on and off with Melody Isham-Pilotte, who purchased a .357 caliber
Glock semiautomatic pistol at his instruction and filled out the
paperwork as the purchaser. Pratt then kept the gun with him and
used it on several occasions to fire at signs and beer cans. At
one point, after crashing Isham-Pilotte's car and leaving the scene
of the accident, he called to tell her that he had left the gun in
the trunk of the car. Isham-Pilotte was able to retrieve the gun.
Eventually, Pratt was arrested for failure to appear in
court on an unrelated matter, and, after an investigation uncovered
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the events described above, he was charged with being a felon in
possession of a firearm. His indictment stated that the government
intended to seek a sentencing enhancement under the ACCA, which
provides a fifteen-year mandatory minimum term for a defendant with
three prior violent felonies or serious drug offenses.
Before trial, the parties filed a stipulation agreeing
that the handgun had been transported in interstate or foreign
commerce. The stipulation also identified five previous crimes for
which Pratt had been convicted. With respect to those crimes, the
stipulation stated that "the jury should be instructed by the Court
that 'the defendant agrees he was previously convicted of a crime
punishable by imprisonment for a term exceeding one year' without
further elaboration or explanation." See infra Section II.A.
At trial, the prosecution told the jury in its opening
statement that the gun in question had traveled in interstate
commerce and that Pratt previously had been convicted of a crime
punishable by imprisonment for more than one year. However, the
stipulation providing the evidentiary support for this statement
was never presented to the jury as evidence prior to the close of
evidence, and the prosecution did not introduce other evidence that
the gun had traveled in interstate commerce or that Pratt was a
convicted felon.
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After the close of evidence, the court issued its
instructions to the jury. It first provided a general instruction
on stipulations:
During the course of trial, you were told that
the government and the defendant agreed or
stipulated to certain facts. This simply
means that both sides accept those facts to be
true. Because there is no disagreement
regarding those facts, there was no need for
either side to introduce evidence relating to
them. You may accept as true those facts to
which the government and the defendant have
stipulated.
With respect to the charged offense, the court instructed the jury
that, under 18 U.S.C. § 922(g)(1), the government must prove that:
(1) the defendant had been convicted of a felony (which it defined
as a "crime punishable by imprisonment for a term exceeding one
year"); (2) the defendant possessed a firearm; and (3) the firearm
had traveled in interstate commerce. It then explained that Pratt
has stipulated or agreed that . . . he was
convicted of an offense punishable by
imprisonment for a term exceeding one year.
Because there is no disagreement regarding
that fact, there was no need for the
government to introduce any evidence relating
to it. As I mentioned earlier, you may accept
as true the facts to which the government and
the defendant have stipulated or agreed.
The court also stated that Pratt
has stipulated that the Glock semi-automatic
pistol at issue in this case traveled across
the state boundary line at some time after its
manufacture. Because the parties do not
disagree as to that fact, there was no need
for the government to introduce any evidence
relating to it and you may accept as true the
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fact that the Glock semi-automatic pistol
traveled in or affected interstate commerce.
Pratt did not object to these instructions. The jury returned a
guilty verdict.
During his sentencing hearing, Pratt objected that he did
not qualify for an enhanced sentence under the ACCA because his
prior offenses did not include three violent felonies. The court
rejected his objections and imposed the statutory minimum sentence
of fifteen years. This appeal ensued.
II.
A. Stipulation to Essential Elements
To establish a violation of 18 U.S.C. § 922(g)(1), the
government must prove three elements beyond a reasonable doubt: (1)
the defendant possessed a firearm; (2) the firearm had traveled in
interstate commerce; and (3) the defendant had been convicted of a
felony prior to his possession of the firearm. Although Pratt did
not claim at trial that his stipulation relating to the interstate
commerce element and the prior conviction element was not
introduced into evidence, he now challenges the sufficiency of the
evidence to support his conviction on those elements. We review an
unpreserved challenge to the sufficiency of the evidence only for
plain error, United States v. Peña-Lora, 225 F.3d 17, 26 (1st Cir.
2000), and will reverse only if the conviction would result in a
"clear and gross injustice," United States v. Bello-Perez, 977 F.2d
664, 668 (1st Cir. 1992).
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Technically, the court erred by first presenting the
subject matter of the stipulation to the jury in its jury
instructions, after the close of evidence. Ordinarily, unless
there is a contrary agreement between the parties, district courts
should ensure that a stipulation, or the content thereof, is
presented to the jurors prior to the close of evidence. This
presentation may take various forms: the stipulation itself could
be entered into evidence, the court could read the stipulation into
evidence, or the parties could agree that one of them will publish
the stipulation to the jury. The presentation will often include
an explanation by the court that the stipulation means that the
government and the defendant accept the truth of a particular
proposition of fact, and, hence, there is no need for evidence
apart from the stipulation itself.
The concurrence suggests that "no settled rule exists as
to how the jury is to be informed of a stipulation."1 We do not
disagree. In fact, we have suggested a variety of ways in which a
1
The concurrence also states that there is no recurring
problem relating to the handling of stipulations. However,
disputes regarding the handling of stipulations have arisen with
some frequency in the appellate courts. See, e.g., United States
v. Harrison, 204 F.3d 236, 238-43 (D.C. Cir. 2000); United States
v. Meade, 175 F.3d 215, 222-24 (1st Cir. 1999); United States v.
Hardin, 139 F.3d 813, 814-17 (11th Cir. 1998); United States v.
Melina, 101 F.3d 567, 572-73 (8th Cir. 1996); United States v.
Muse, 83 F.3d 672, 677-81 (4th Cir. 1996); United States v. Branch,
46 F.3d 440, 441-42 (5th Cir. 1995); United States v. James, 987
F.2d 648, 648-52 (9th Cir. 1993); United States v. Clark, 993 F.2d
402, 405-06 (4th Cir. 1993).
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jury could be informed of the content of a stipulation. However,
in our view, there is a settled rule that the content of a
stipulation must be published to the jury prior to the close of
evidence. That settled rule is confirmed by a review of the
pattern jury instructions from the circuits. For example, the
Pattern Criminal Jury Instructions for the District Courts of the
First Circuit state, with respect to stipulations:
The evidence in this case includes facts to
which the lawyers have agreed or stipulated.
A stipulation means simply that the government
and the defendant accept the truth of a
particular proposition or fact. Since there
is no disagreement, there is no need for
evidence apart from the stipulation. You must
accept the stipulation as fact to be given
whatever weight you choose.
Pattern Criminal Jury Instructions for the District Courts of the First
Circuit § 2.01 (1998), available at
http://www.med.uscourts.gov/practices/crpji.97nov.pdf (last visited July
19, 2007)(emphasis added).2 Other circuits similarly acknowledge the
evidentiary nature of stipulations. See e.g., Pattern Criminal Jury
Instructions for the Sixth Circuit § 1.04 (2007)
http://www.ca6.uscourts.gov/internet/crim_jury_insts/pdf/crmpattjur_full
.pdf (last visited July 29, 2007)(“The evidence in this case includes
only what the witnesses said while they were testifying under oath;
the exhibits that I allowed into evidence; the stipulations that
2
As we have previously noted, the Pattern Criminal Jury
Instructions are not mandatory in the First Circuit. See United
States v. Sabetta, 373 F.3d 75, 82 n.2 (1st Cir. 2004).
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the lawyers agreed to; and the facts that I have judicially
noticed.”); Pattern Criminal Jury Instructions for the Tenth
Circuit § 1.01 (2005), available at
http://www.ck10.uscourts.gov/downloads/pji10-cir-crim.pdf (last
visited July 29, 2007)(“Evidence will be presented from which you
will have to determine the facts. The evidence will consist of the
testimony of the witnesses, documents and other things received
into the record as exhibits, and any facts about which the lawyers
agree or to which they stipulate.”); Pattern Criminal Jury
Instructions for the Seventh Circuit § 1.02 (1998), available at
http://www.ca7.uscourts.gov/pjury.pdf (last visited July 29, 2007)
(“The evidence consists of the testimony of the witnesses, the
exhibits entered in evidence, and stipulations.”). The Fourth
Circuit, in United States v. Muse, 83 F.3d 672, 678 (4th Cir.
1996), reinforced the assumption of these instructions with its
statement that "a defendant waives the requirement that the
government produce evidence (other than the stipulation itself) to
establish the facts stipulated to beyond a reasonable doubt."
(Emphasis added.)3
3
Muse is not entirely on point because the stipulation to two
essential elements of the charged offense was read to the jury, and
the issue was whether the jury instructions properly conveyed the
evidentiary force of the stipulation. Muse, 83 F.3d at 678.
However, the case does reflect the prevalent understanding that a
stipulation should be introduced into evidence.
-8-
The handling of Pratt's stipulation did not comply with
the standard practice surrounding stipulations that we have
described above,4 and the language of the stipulation offers no
indication that the parties intended to depart from this standard
practice. In full, the stipulation reads as follows:
The United States and the defendant stipulate
to the following facts, which the parties
agree can be proved beyond a reasonable doubt:
1. That the .375 caliber Glock Semiautomatic
Pistol Serial # EWU023US, which was
manufactured in Austria, had been transported
in interstate or foreign commerce, and that it
is a "firearm" for purposes of 18 U.S.C.
§ 921(a)(3).
2. That Mr. Pratt was convicted of the
following crimes:
A. On September 12, 1986, the defendant was
convicted in Hillsborough County Superior
Court of Armed Robbery [under N.H. Rev. Stat.
Ann. § 636:1].
B. On January 9, 1995, the defendant was
convicted in Hillsborough Superior Court of
Accomplice to Armed Robbery [under N.H. Rev.
Stat. Ann. §§ 629:1, 636:1].
4
To the extent that some of the other circuits have held
that, by stipulating, a defendant waives his right to have the
government enter the content of the stipulation into evidence, they
are at odds with the prevalent understanding of how a stipulation
should be handled. See Hardin, 139 F.3d at 816 ("Hardin waived his
right to have the government produce evidence of his felon status,
including the stipulation itself."); Harrison, 204 F.3d at 242;
("[T]here is little to be gained from holding that a stipulation,
which unarguably waives a defendant's right to require the
government to produce any evidence regarding that stipulation,
nevertheless fails to waive the defendant's right to require that
stipulation to be read to the jury.").
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C. On 21, 1988, the defendant was convicted in
Merrimack County Superior Court of Assault by
a Prisoner [under N.H. Rev. Stat. Ann.
§ 642:9].
D. On June 15, 1990, the defendant was
convicted in Carroll County Superior Court of
Burglary [under N.H. Rev. Stat. Ann. § 635:1].
E. On April 5, 1990, the defendant was
convicted in Hillsborough County Superior
Court of Escape [under N.H. Rev. Stat. Ann.
§ 642:6].
which are all crimes punishable by
imprisonment for a term exceeding one year.
The parties further stipulate that the jury
should be instructed by the Court that "the
defendant agrees he was previously convicted
of a crime punishable by imprisonment for a
term exceeding one year" without further
elaboration or explanation.
This text indicates that the parties contemplated that the judge
would read the appropriate portions of the stipulation to the jury
at a mutually agreeable time.5
5
The brief conversation regarding the stipulation between the
prosecutor and the court, which took place prior to the swearing in
of the jury, supports this understanding:
Prosecutor: Judge, the United States would like to file
a stipulation between the parties as to certain elements
of the crime. It's been executed by the defendant, his
counsel, and the United States.
The Court: All right, at the appropriate time do you
expect me to read it or would you like to read it . . .
it's up to you . . . .
Prosecutor: There's references to the conviction, judge.
The very last part of the stipulation is the agreement as
to what you should read to them. I don't think it's
necessary to read it to them at this point in the case.
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Given the agreement that the jury should be told that
Pratt had a prior felony conviction "without further elaboration or
explanation," the parties did not intend for the stipulation itself
to be introduced into evidence. Indeed, part of the motivation for
the stipulation on the part of the defense was to prevent detailed
evidence of Pratt's criminal history from coming before the jury.
Thus, the stipulation reveals an understanding that the judge would
present the material regarding the interstate commerce element and
the prior conviction element to the jury as evidence on those
elements, with the further understanding, as the stipulation
states, that the facts set forth in the stipulation "can be proved
beyond a reasonable doubt." We do not interpret the statement that
"the jury should be instructed" regarding the prior convictions to
mean that the parties agreed that this information should have been
conveyed during the jury instructions, after the close of evidence,
contrary to the usual practice. Instead, "instructed" just means
that the court should explain to the jury at the appropriate time
that the defendant was previously convicted of a felony. That
appropriate time would be at some point during the presentation of
evidence to the jury. However, the judge did not read the agreed-
upon portion of the stipulation to the jury during the presentation
of evidence, conveying the requisite material to the jury only in
the jury instructions, following the close of evidence. Jury
Defense counsel was silent during this interaction.
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instructions themselves are not evidence, and so, again, this
omission was an error, albeit a technical one.6
Ultimately, however, this technical error does not
remotely warrant reversal of Pratt’s conviction. As noted, the
particularly stringent form of plain error review we apply to an
unpreserved challenge to the sufficiency of the evidence asks
whether the conviction resulted in a "clear and gross injustice."
Bello-Perez, 977 F.2d at 668. Because Pratt had in fact conceded
the elements addressed by the stipulation, no such injustice
occurred here. Consequently, we reject Pratt's claim of plain
error.
B. Stipulation to Prior Offenses
Pratt also challenges the fifteen-year term of
imprisonment he received under the ACCA, which mandates such a
sentence for an individual convicted of being a felon in possession
of a firearm who also has "three previous convictions . . . for a
violent felony." 18 U.S.C. § 924(e). Pratt claims that the
government failed to establish three such convictions. Whether a
crime qualifies as a violent felony is a legal question that we
6
The concurrence suggests that we have manufactured
unnecessary law in this opinion. We respectfully disagree. Our
holding is simply a reminder to the trial courts of some well-
established propositions — namely, that stipulations are evidence,
jury instructions are not, and a stipulation should be presented to
the jury, in whatever manner the parties and the courts agree to,
prior to the close of evidence. We doubt that the trial courts, or
the litigants, will feel unduly burdened by these reminders.
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review de novo. United States v. Mastera, 435 F.3d 56, 59 (1st
Cir. 2006).
As noted, before trial, Pratt stipulated to the fact of
his prior convictions for five offenses under New Hampshire law:
(1) armed robbery; (2) accomplice to armed robbery; (3) assault by
a prisoner; (4) burglary; and (5) escape from prison. See supra
Section II.A. On appeal, he argues that three of these offenses —
accomplice to armed robbery, burglary, and escape from prison — do
not fall within the category of "violent felonies" for purposes of
§ 924(e).
Pratt's claim fails in light of our precedents on the
crime of escape. In United States v. Winn, 364 F.3d 7, 12 (1st
Cir. 2004), we held that a conviction under the New Hampshire
escape statute "is properly characterized as a crime of violence
for the purposes of career offender enhancement under the
sentencing guidelines." We have also held that "the definitions
of 'crime of violence' and 'violent felony' are mirror images of
each other and that, therefore, cases construing one such term
should be considered instructive with respect to the scope of the
other." United States v. Richards, 456 F.3d 260, 263 n.2 (1st Cir.
2006). Our case law thus establishes that the crime of escape is
a violent felony. Pratt stipulated to two other offenses that he
does not dispute were violent felonies — armed robbery and assault
by a prisoner. These three offenses were a sufficient predicate
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for the sentencing enhancement under the ACCA, and we therefore
need not consider Pratt's arguments with respect to the remaining
two stipulated offenses.7
III.
For the foregoing reasons, we affirm Pratt's conviction
and sentence.
So ordered.
- Concurring Opinion Follows -
7
Pratt also asserts that his sentencing was in violation of
the Fifth and Sixth Amendments because the indictment did not
charge, he did not admit, and a jury did not find that his prior
convictions qualified as predicate offenses under the ACCA. The
Supreme Court rejected this argument in Almendarez-Torres v. United
States, 523 U.S. 224, 239 (1998), and Apprendi v. New Jersey, 530
U.S. 466, 489-90 (2000), but Pratt argues that a majority of the
Supreme Court is now poised to overrule its prior holding. As he
acknowledges, however, we have rejected this argument on numerous
occasions. See, e.g., United States v. McKenney, 450 F.3d 39, 45-
46 (1st Cir. 2006); United States v. Moore, 286 F.3d 47, 51 (1st
Cir. 2002). Thus, we need not give it further consideration here.
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BOUDIN, Chief Judge, concurring in the judgment. No
single ritual has been prescribed for advising the jury that a
factual issue has been stipulated to by the parties. In some cases
a written stipulation is introduced; in others, the jury is merely
informed; and no fixed rule exists as to timing. Surely if the
parties are content and the pertinent information is conveyed, this
is a matter that should be left to the informed discretion of the
district judge.
The parties in this case agreed that the defendant had a
prior felony conviction and the gun had moved in interstate
commerce. They signed and filed a stipulation to this effect
listing the specific felonies. The government in opening argument
told the jury as to what had been stipulated, without identifying
the three specific felonies--an omission helpful to the defendant.
In the instructions, the judge repeated the substance to the jury.
The defendant did not object either to the opening
statement or the court's handling of the matter at the instruction
stage and even on appeal cannot explain how he was disadvantaged by
the procedure followed, arguing instead that there was "no
evidence" as to the stipulated facts. Of course, the point of a
stipulation is to avoid the need to present evidence of an
uncontested fact.
Merely to read the panel opinion is to confirm that no
settled rule exists as to how the jury is to be informed of a
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stipulation. And, in the absence of a governing rule or some
prejudicial action, what the district judge did was assuredly not
"error." Nor is there any indication of any "standard practice"--
whatever this may mean--or that the district judge departed from
what the parties intended.
If a recurring problem were presented as to handling of
stipulations, it might be acceptable to say that--though there was
no error--the matter ought in the future to be handled in a
different way. But no such problem exists. Manufacturing more
unnecessary "law," of which there is already no shortage, merely
creates new traps for trial judges and litigants who are trying to
get their jobs done under pressures far exceeding our own.
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