
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1666                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                   DAVID P. PRATT,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________            M. Kristin Spath, Assistant Federal Defender, for appellant.            ________________            Peter E. Papps, First Assistant U.S.  Attorney, with whom Paul  M.            ______________                                            ________        Gagnon, United States Attorney, was on brief for appellee.        ______  ______________________                                 ____________________                                   January 18, 1996                                 ____________________                      ALDRICH, Senior Circuit Judge.   Defendant David P.                               ____________________            Pratt,  having been allowed to withdraw a plea of guilty, was            tried  to a jury for  violation of United  States Code, Title            18, Section  876 (Mailing  a  Threatening Communication)  and            found guilty.   He  now appeals,  with new  counsel, claiming            violation  of   Fed.R.Evid.  404(b)   by  the   admission  of            prejudicial testimony of another  threat, and from a sentence            that  included a two level  upward departure.   We remand for            further consideration of sentence.                      In   August,   1991,  defendant's   automobile  was            repossessed  for nonpayment of an installment, and discovered            to  contain  a  substantial  number of  automatic  and  semi-            automatic firearms and explosive  devices.  These were turned            over to  the Goffstown, New Hampshire,  Police Department but            eventually found to be defendant's lawful property.  In spite            of  this  finding, Police  Chief  Stephen  Monier refused  to            return  them,  absent  a  court order.    Defendant,  greatly            angered  by  the delay,  complained a  number  of times.   He            phoned  the police station on  the morning of  July 20, 1992,            and was told to call  back that afternoon.  An hour  later he            telephoned Chief Monier's home and spoke to a young friend of            Monier's  ten year  old daughter,  who said  that he  was not            there.   The man stated that  he was David Pratt  and to tell            her father, "I  know where he lives."    When informed of the            call, Monier  took it to be  a serious threat.   On September                                         -2-            14,  1992, a  New  Hampshire court  ordered that  defendant's            weapons and  devices be  returned to him,  and the  Goffstown            police complied.                      On October  1, 1992,  Monier  received through  the            mail,  postage prepaid, a carton which was found to contain a            dead and badly mutilated  pig of some 29 pounds.   There were            no   tell-tale  writings   on,  or   in,  the   package,  but            fingerprints, identified to be defendant's, were found on the            outside.   At trial defendant testified that the pig was his;            that  he had  shot it,  following an  accident, and  that one            Jennifer  Gagnon stole it from his refrigerator and mailed it            to Monier without his  suggestion or knowledge.  By  the time            of trial, Gagnon was deceased.                      Although  there  was  other   supporting  evidence,            including defendant's boasting to a friend that he had sought            to scare Monier  by sending the mutilated pig, the government            chose  to  tighten  its  case by  eliciting  evidence  of the            threatening telephone call.  Defendant objected at the outset            to the admission of  any evidence of the  call, and to  "this            whole line  of  testimony."   The  court disagreed,  but  did            caution the jury to consider any evidence, if a prior threat,            as distinct from the pending charge, and as relevant "only to            show  things  like  the  identity of  the  defendant  or  his            possible  motive or  his  possible intent  or the  absence of                                         -3-            mistake  or  accident with  respect to  the charge  that's on            trial here".                      On  appeal  defendant  argues  that  the  telephone            threat  was very  different from  the one  with which  he was            charged, and that its introduction  was simply to blacken his            character as forbidden by Rule 404(b).  See, United States v.                                                    ___  _____________            Tuesta-Toro, 29 F.3d  771, 775 (1st Cir. 1994), cert. denied,            ___________                                     ____________            ___ U.S.  ___, 115  S.Ct. 947,  130 L.Ed.2d  890 (1995).   He            contends,  first, that it  was inadmissible  altogether under            Fed.R.Evid.  404(b),1  or that  its  prejudice  would in  any            event  substantially exceed its probative value, rendering it            excludable  under  Fed.R.Evid.  403.2   The  government says,            inter  alia, that  the  threat  displayed defendant's  grudge            ___________            against Chief Monier, an intent to act upon it, and knowledge            of  his victim's  residence  (to which  the packaged  pig was            addressed),  as well as  being a  self-identification against                                            ____________________            1.  Rule 404(b) provides, in relevant part:                      Evidence of other crimes, wrongs, or acts                      is not admissible to prove  the character                      of a  person in  order to show  action in                      conformity therewith.   It may,  however,                      be admissible for other purposes, such as                      proof  of  motive,  opportunity,  intent,                      preparation,  plan, knowledge,  identity,                      or absence of mistake or accident.            2.  Rule 403 states, in relevant part:                      Although   relevant,   evidence  may   be                      excluded  if  its   probative  value   is                      substantially outweighed by the danger of                      unfair prejudice . . .                                         -4-            his  own interest.  We quite agree that the disputed evidence            had  "special relevance" to  material issues, Tuesta-Toro, 29                                                          ___________            F.3d  at  775 --  even  defendant  concedes the  purpose  for            introducing it  included showing  the identity of  the person            who  mailed  the  pig --  but  the  prosecution's  use of  it            progressed well beyond the necessary.  Its admission provided            the  basis   for  subsequent  dramatization  of   the  call's            emotional effect upon Monier  and his family, particularly on            his young daughter.  This was not relevant, and magnified the            very prejudice that  the Rules of  Evidence were designed  to            minimize.3   Fed.R.Evid. 403,  404(b).  Tuesta-Toro,  29 F.3d                                                    ___________            at 775; United  States v. Aguilar-Aranceta, 58  F.3d 796, 798                    ______________    ________________            (1st Cir. 1995).                       However,  defendant's failure  to call  the court's            attention  to prosecutorial  excess as  it occurred,4  and to            request consideration  of  the probative  value  of  proffers            concerning, for  example, the anxiety of  the Chief's family,            his  keeping a firearm beside  his bed, and  the inability of                                            ____________________            3.  The  government's brief  is  totally silent  in spite  of            defendant's detailed  complaint.   At oral argument  its sole            response  to our questioning was that its purpose was to make            sure the jury  realized there had been  a call, and that  the            "cold record"  may look worse  to us.   Counsel's thermometer            needs adjustment.            4.  Defendant's  objection  at   the  time  of  its   initial            introduction  "to   this  line   of  testimony"  related   to            admissibility  of  the  fact  of the  phone  call,  correctly                                    ____            overruled by  the court, not to  the subsequent dramatization            of  the family's fears,  which elicited not  a single protest            from defense counsel.                                         -5-            his  little  girl  to  sleep alone  following  the  telephone            threat, in light of their likely prejudicial effect, deprived            the court  of an  opportunity to make  particularized rulings            which we could  now review. It  is counsel's duty not  to sit            idly  by  while  his  case is  conspicuously  suffering,  see                                                                      ___            Clemente v.  Carnicon-Puerto Rico Mgmt. Assoc.,  52 F.3d 383,            ________     _________________________________            387  (1st Cir. 1995), and it was his responsibility to object            when  testimony  strays outside  the  court's  prior limiting            instruction.   Courts may be  reluctant to interfere  and may            have  difficulty deciding  whether  to exclude  testimony  on            their own.   We review  for plain error  alone.   Fed.R.Evid.            103.   Tuesta-Toro,  29 F.3d  at 775  (absent contemporaneous                   ___________            objection,  court  will  reverse  only  if  error  "seriously            affected the fundamental fairness  and basic integrity of the            proceedings") (citation omitted).                      While testimony  as  to the  threat's  effect  upon            Monier and his family must have been detrimental to defendant            --  though not  so  pervasive  as  defendant  claims  --  the            government's  case  on  the merits  was  too  strong, in  our            opinion,  to have  made this  harm to  defendant a  factor of            consequence in  the result.  Defendant's  own statements, his            fingerprints on  the package, his established  anger over the            unlawful retention of his firearms,  his ownership of the pig            carcass,  and, notably, the absence of  any visible motive to            have caused  the conveniently deceased Gagnon  to have mailed                                         -6-            it,  were overwhelming.   While  we might  order a  new trial            simply to teach  government counsel that his primary  duty is            to obtain justice, not  to win cases, see Brady  v. Maryland,                                                  ___ _____     ________            373  U.S. 83,  87-88  (1963), we  hope  we have  said  enough            without such draconian action.                      As to  the sentence, application of    4A1.1 of the            Sentencing Guidelines yielded criminal history category (CHC)            I, based on one point assigned for defendant's only countable            prior  conviction.   However, the  court found CHC  I clearly            under-represented  the  seriousness  of defendant's  criminal            history and his recidivism.  Impressed by a "string of zeros"            in defendant's  pre-sentence report (PSR) indicating a series            of  past convictions  -- for  disorderly conduct,  attendance            violations  while in  the  military,  criminal liability  for            conduct  of  another,   criminal  threatening,  assault,  and            driving  while intoxicated -- for  which no "points" could be            assigned under   4A1.1, the  court added 1 point for  each of            the last four  and bumped  defendant into CHC  III.   Notably            with respect  to recidivism, each of  these were misdemeanors            that  occurred a  minimum of  13 years  prior to  the instant            offense.                      Section 4A1.3 allows a sentencing court to consider            uncounted  prior convictions and  other criminal  behavior in                                         -7-            increasing the CHC5  if "reliable information indicates  that            the criminal history category does not adequately reflect the            seriousness of  the defendant's past criminal  conduct or the            likelihood  that  the defendant  will  commit other  crimes."            U.S.S.G.   4A1.3.   Its decision  to depart, as  well as  the            degree  of  departure,  is  entitled to  respect,  given  its            "special competence," experience, and "superior feel" for the            case.  United  States v.  Rivera, 994 F.2d  942, at 950,  951                   ______________     ______            (1st Cir. 1993) (citing  Williams v. United States, 503  U.S.                                     ________    _____________            193, 112 S.Ct. 1112, 1121 (1992));  United States v. Shrader,                                                _____________    _______            56 F.3d  288, 292  (1st Cir.  1995).   Once we  determine the            court  acted  within its  discretion,  our  only question  is            whether its decision was reasonable and adequately explained.            Id.            ___                      We  first  note  that  defendant  is  incorrect  to            suggest    that   the   Guidelines   forbid   or   discourage            consideration  of old  convictions in  a decision  to depart.            Cf.  Rivera,  994 F.2d  at  948-49  (detailing forbidden  and            ___  ______                                            ____________________            5.  The relevant provisions include:                      (a)   prior   sentence(s)  not   used  in                      computing  the criminal  history category                      . . .                      . . .                      (e) prior similar adult  criminal conduct                      not resulting in a criminal conviction.            U.S.S.G.   4A1.3.                                         -8-            discouraged  departures).   Likelihood  of  recidivism  is an            alternative  justification  to  under-representation  of  the            ___________            seriousness of defendant's criminal history for a decision to            depart upward.   U.S.S.G.   4A1.3; Schrader, 56  F.3d at 292.                                               ________            The  court  here made  the  latter  finding, based  on  prior            sentences for similar conduct (1979 assault and 1977 criminal            threatening), and  serious dissimilar  conduct (1980  DWI and            1977 criminal  liability for conduct of  another and theft6).            Where  these considerations are  appropriate to  the decision            whether to  depart, and defendant's PSR  provides an adequate            basis, we cannot  substitute our judgment.  United  States v.                                                        ______________            Quinones,  26 F.3d 213, 219 (1st Cir. 1994); Rivera, 994 F.2d            ________                                     ______            at 952.   See also Williams,  503 U.S. at  205, 112 S.Ct.  at                      ___ ____ ________            1121.  However, once the court believes a properly calculated            CHC  significantly  under-represents  a defendant's  criminal            history,  the Guidelines direct  the court's  departure quite            specifically:  the court must find that "defendant's criminal            history most  closely resembles that of  most defendants with                    _____________                    ____            [the] Criminal History Category [the court seeks to impose]."            U.S.S.G.    4A1.3 (emphasis  added).   If it  were sufficient            simply to  add points for  conduct excluded from  the initial            CHC calculation  to arrive at a higher  category, the   4A1.1            parameters for guiding CHC determination would  be nullified.                                            ____________________            6.  The court  indicated this was robbery.   Although robbery            was the original indictment, defendant ultimately pled guilty            to theft.                                         -9-            The  court's  mere  conclusion  that a  CHC  III  "adequately            reflects defendant's criminal history" fails to shed light on            this question.                      Although   we  accord  "substantial  leeway"  to  a            sentencing court's determination of the appropriate degree of            departure,                      this freedom does  not relieve [it]  from                      explaining its ultimate  decision of  how                      far to depart.   Merely explaining why  a                      departure was made  does not fulfill  the                      separate   requirement  of   stating  the                      reasons   for  imposing   the  particular                                                     __________                      sentence.            Quinones,  26 F.3d  at 219  (emphasis added)  (quoting United            ________                                               ______            States v.  Rosales, 19 F.3d  763, 770 (1st Cir.  1994)).  See            ______     _______                                        ___            also Rivera,  994 F.2d at 946, 949-50.  Because we are unable            ____ ______            to evaluate  responsibly the reasonableness of  the extent of            the court's departure  absent explication,  which we  observe            might  include at least an  indication of why  a one category            increase is inadequate, we will  follow our past practice  of            ordering a limited  remand for clarification  while retaining            appellate jurisdiction.  See Quinones, 26 F.3d at 219-20.                                     ___ ________                      We affirm  defendant's  conviction and  remand  for                      ___________________________________________________            further proceedings with respect to sentence.            _____________________________________________                                         -10-
