
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2223                                    UNITED STATES,                                      Appellee,                                          v.                                    PATRICK TRACY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Margaret  D.  McGaughey,  Assistant United  States  Attorney, with            _______________________        whom Jay B. McCloskey,  United States Attorney, and Nicholas  M. Gess,             ________________                               _________________        Assistant United States Attorney, were on brief for appellee.            David R. Beneman, with whom Levenson,  Vickerson & Beneman was  on            ________________            ______________________________        brief for appellant.                                 ____________________                                  September 28, 1994                                 ____________________                      CAMPBELL, Senior Circuit Judge.   Patrick W. Tracy,                                ____________________            defendant-appellant, was indicted in  a single count as being            a felon in possession of a  firearm in violation of 18 U.S.C.               922(g)(1) (1988).1    Tracy  pleaded  not guilty  and  not            guilty  only by reason of insanity.  Following a joint motion            for a competency examination, a psychologist with the federal            prison  system   diagnosed  Tracy,  a  Vietnam   veteran,  as            suffering     from    Post-Traumatic     Stress    Disorder.2                                            ____________________            1.  18 U.S.C.   922(g)(1) states:                      (g) It shall be unlawful for any person                             (1) who has been  convicted in any  court                           of a crime punishable by imprisonment for                           a term exceeding one year[]                      to  ship  or transport  in  interstate or                      foreign  commerce,  or   possess  in   or                      affecting   commerce,   any  firearm   or                      ammunition;  or to receive any firearm or                      ammunition  which  has  been  shipped  or                      transported  in   interstate  or  foreign                      commerce.             2.  Post-Traumatic Stress Disorder is an anxiety disorder                      whose  "essential feature  . .  .  is the                      development  of  characteristic  symptoms                      following  a  psychologically distressing                      event that is outside the range of  usual                      human experience.  . .  .   [S]uch common                      experiences   as   simple    bereavement,                      chronic  illness,  business  losses,  and                      marital conflict" will not trigger [Post-                      Traumatic   Stress   Disorder];   classic                      examples of events  which will induce the                      syndrome   include   natural   disasters,                      military combat, torture, and rape. . . .                           .  .  .    The  syndrome's  symptoms                      include  insomnia,   exaggerated  startle            Nevertheless, he  reported that Tracy was  competent to stand            trial.  Tracy was tried by jury in the United States District            Court for the District of Maine.   The jury returned a guilty            verdict.    The  district  court,  pursuant  to  18  U.S.C.              924(e)(1) (1988),  sentenced Tracy to 312 months imprisonment            to  be followed by five  years of supervised  release.  Tracy            appeals from  both  the  conviction and  the  sentence.    We            affirm.                                           I.                                          I.                      The evidence at trial  indicated the following.  At            approximately  2:00  p.m.  on  May 18,  1991,  Patrick  Tracy            entered a Shaw's Supermarket in Saco, Maine, and forced store            employees  at gunpoint to fill  a black, gym  bag with money.            Tracy  then took the  gun and the  bag of money  and left the            store.  A store employee, Mark Dubay, observed Tracy get into            a small, blue station  wagon parked no more than  thirty feet            from the store.   Mr.  Dubay read the  license plate  number,            observed the  direction in which  the car headed,  and called            the police.                                             ____________________                      response,  feelings  of  guilt,  loss  of                      appetite  and  of  weight,  avoidance  of                      reminders   of   the   traumatic   event,                      fearfulness,    and     nightmares    and                      flashbacks.            Debra A. Abbott  et al., Developments in Maryland  Law, 1986-                                     ____________________________________            87, 47 Md. L. Rev. 861, 881 n.2 (1988) (citations omitted).              __                                         -3-                      While on patrol in a cruiser, Sergeant Bradley Paul            and  Officer Louis  McAuliffe of  the Saco  Police Department            were  informed by  radio of  the Shaw's  Supermarket robbery.            The   dispatcher  provided   them  with  the   getaway  car's            description, license plate number,  and direction of  travel.            As the  officers proceeded  towards the scene,  they observed            heading  towards them  a two-tone  blue 1984  Chevrolet, with            Maine   license   registration  780   82X,   that   fit  this            description.  The officers pursued at high speed.                       During the  chase, Sergeant Paul  saw Tracy  extend            his left  arm out the window  and throw a large  black object            over the roof of  the car.  Officer McAuliffe  identified the            object as a firearm,  and, by radio communication, instructed            another pursuing police officer, Michael Carrier, to retrieve            the weapon.   At the  area identified  by Officer  McAuliffe,            Carrier  found the  hand grip  of the  firearm, a  Ruger long            barrel  .45 caliber  revolver, implanted  in a  utility pole.            The  revolver's frame  was located  in the grass  about eight            feet to the right of the pole.                      In   the  meantime,   Sergeant  Paul   and  Officer            McAuliffe continued their pursuit.  Eventually, the Chevrolet            came  to a stop.  Tracy exited the car and began to run.  The            police pursued on foot.   After a short chase,  Tracy stopped            running.  Sergeant Paul  and Officer McAuliffe subdued Tracy,            placed him under  arrest, walked him  back to their  cruiser,                                         -4-            and  read him his Miranda rights.   A search of the Chevrolet                              _______            revealed an open, black,  Reebok gym bag filled with  cash on            the right,  front seat.   A small, orange  Shaw's Supermarket            zipper bag was later discovered at the bottom of the gym bag.                      Robbery of the Shaw's  Supermarket was not  Tracy's            first  such transgression.    The  instant indictment  listed            seven  prior convictions: (1) assault  with a shotgun on July            6,  1977, (2) assault with  intent to murder  on December 18,            1980, (3) assault by means of a handgun on December 18, 1980,            (4) assault by means  of a handgun on December  18, 1980, (5)            armed robbery on December 18, 1980, (6) carrying a firearm in            a vehicle without  a license  on December 11,  1987, and  (7)            receiving  a  stolen  firearm  on  December  11,  1987.   Not            included in  the indictment were other  prior convictions for            assault  and battery  on  a police  officer on  September 25,            1979, uttering  a false  prescription on September  24, 1984,            and  assault  and  battery  on  a  police  officer,  also  on            September 24, 1984.                      At  trial, Tracy  testified  at  length  about  his            experiences in  the military  and as an  infantry soldier  in            Vietnam.  He also  described his life after he  was honorably            discharged from the  military in November  1970.  Tracy  told            the jury that, after his discharge, he did not  have a steady            job,  and, with a few exceptions,  had difficulty relating to            people.  He  felt increasingly nervous and fearful of crowds.                                         -5-            He started to experience severe headaches, and began drinking            heavily and taking  drugs.  Memories of disturbing  events in            Vietnam made            him feel depressed  and angry.   He had difficulty  sleeping,            and suffered from nightmares  involving his war  experiences.            He twice attempted suicide,and was in and out ofVA Hospitals.                      Tracy  also testified  that  he  has suffered  from            hallucinations.   In  or about  1973, he  was sitting  at his            parents' kitchen window when  he noticed outside four people,            whom  he knew to be  dead, walking towards  the house.  Tracy            described  that, on another  occasion, in April  1991, he was            walking  down the street when he noticed two people, who were            not really there, on either  side of him.  They  were dressed            in Vietnam jungle  fatigues.  Tracy felt one of  them pat him            on the back, and heard the other say, "Now we're  home, Pat."            According to Tracy, one man was black, the other white.  This            hallucination lasted approximately twenty seconds.                      Tracy told  the jury that  the weeks leading  up to            the  robbery  were  particularly   difficult  for  him.    He            testified  to   experiencing   "horrible  dreams"   of   war,            bloodshed, and his dead friends.  Some of his dreams depicted            events  that  actually  happened,  and some  were  recurring.            Tracy said that he was being "driv[en] over the  edge" by all            the  celebrating and  publicity  surrounding the  end of  the            Persian  Gulf  War.   He  was particularly  disturbed  by the                                         -6-            yellow ribbons  people were hanging to  welcome the returning            soldiers.                      Tracy testified that, during the days leading up to            the robbery of  the Shaw's Supermarket,  May 15-17, 1991,  he            was  staying  in  a  motel in  Maine  contemplating  suicide.            Towards this end, he  purchased the gun used in  the robbery.            Tracy testified that, while  taking a walk on the  morning of            May 18,  1991, the day of the Shaw's robbery, he saw a man in            front of a  Shop 'n  Save selling poppies  for Memorial  Day.            The store front was adorned with yellow ribbons.  This sight,            said Tracy, made him  feel "horrible."  Tracy walked  back to            the motel where he was staying.  Then, according  to Tracy, a            thought came to him to "rob something," distribute the  money            to  the families of his  friends who were  killed in Vietnam,            and then  kill himself at  the Vietnam  Veterans Memorial  in            Washington, D.C.  Thereafter, Tracy took a walk, stole a car,            went back to the motel, left the  motel again, and robbed the            Shaw's  Supermarket.   As  to what  he  was thinking  when he            robbed   the  store,   Tracy's  last   statement   on  direct            examination was:                           With everything that had been caving                      in on me, thoughts [about] Vietnam, this,                      that, and the other thing, all the things                      to do with it,  friends of mine and stuff                      like that,  my  feelings towards  it  and                      stuff  like that,  I thought  it was  the                      right thing to do.                                         -7-                      Tracy called three  witnesses    Wally Rogers,  Dr.            John Meserve,  and Dr.  Terrence Keane     who all  testified            that Tracy suffers from  Post-Traumatic Stress Disorder.  Dr.            Keane and Mr. Rogers characterized it as severe and  chronic.            In rebuttal,  the Government  called Dr. Michael  Morrison, a            clinical psychologist  with the Federal Bureau  of Prisons at            the  Federal Correctional  Facility in  Petersburg, Virginia.            He testified that, while he  examined Tracy between March  5,            1992,  and April 9,  1992, in  order to  determine if  he was            competent  to stand trial, he  did all that  was necessary to            assess  Tracy's legal  sanity.   Dr. Morrison  confirmed that            Tracy suffers from Post-Traumatic Stress Disorder, as well as            alcohol and  substance abuse.    He testified  that a  person            suffering  from  Post-Traumatic  Stress  Disorder  could lose            touch with  reality at a  given point in  time if he  were to            experience a  flashback, which Dr. Morrison  described as "an            intense  memory   or  reliving  of   [a]  traumatic   event."            According to Dr. Morrison,  Tracy's actions on May 18,  1991,            as  described  in the  police report,  did not  indicate that            Tracy  was  experiencing  a  Post-Traumatic  Stress  Disorder            flashback  because there  were  no actions  or statements  to            suggest  that Tracy thought that he was involved in combat at            that time.                      Dr. Morrison's assessment of Tracy was supported by            Dr.  Elizabeth Knutson,  Acting  Chief of  Psychology at  the                                         -8-            Metropolitan Correctional  Center in  New York.   Dr. Knutson            agreed   that  Tracy   suffers  from   Post-Traumatic  Stress            Disorder,  and, like  Dr. Morrison,  she found  no indication            that Tracy was  experiencing a flashback  when he robbed  the            Shaw's Supermarket.   To the contrary, in  her opinion, Tracy            was cool,  calm, and goal-directed  during the course  of the            robbery.                                         II.                                         II.                      Tracy makes four arguments on appeal,  namely, that            the district court  erred in (1)  allowing the Government  to            introduce  evidence of  his prior  criminal record  that went            beyond the  parties' stipulation  that Tracy was  a convicted            felon,  (2) instructing the jury  on the meaning  of the term            "knowingly,"  (3)  failing  to   instruct  the  jury  on  the            consequences of a  verdict of  not guilty only  by reason  of            insanity, and (4)  sentencing him as an armed career criminal            under 18 U.S.C.   924(e)(1).  We address these contentions.                                           A.                                          A.                      A felon-in-possession prosecution under 18 U.S.C.              922(g)(1) requires  the Government  to prove  three elements:            (1)  that the  defendant knowingly  possessed a  firearm; (2)            that,  at the time of the possession, the defendant had "been            convicted in any court of  a crime punishable by imprisonment            for  a term exceeding one  year," 18 U.S.C.    922(g)(1); and            (3) that such  possession was in  or affecting interstate  or                                         -9-            foreign commerce.  At  trial, the parties stipulated "that[,]            on or about May 18, 1991, [the date of the crime,] Patrick W.            Tracy  .  .  . had  been  previously  convicted  of a  felony            offense."3    Notwithstanding, the  district  court permitted            the  Government  to  elicit during  its  cross-examination of            Tracy testimony  that he was  convicted (1) on  September 24,            1984,  of uttering a false  prescription, (2) on December 18,            1980, of armed assault with intent to rob the Regan Pharmacy,            and (3) on December 11, 1987, of buying or receiving a stolen            firearm or carrying a  firearm in a vehicle.   Tracy contends            that,  in  light  of  the  stipulation,  the  district  court            committed  reversible  error  in allowing  the  Government to            delve into  his prior  convictions because such  evidence was            inadmissible  under Fed.  R.  Evid. 404(b).   The  Government                                            ____________________            3.  The  stipulation  was  intended  to  satisfy  the  second            element of  the Government's  case against Tracy.   While  it            might not be  apparent to a jury that  conviction of a felony            meant  conviction "in  any  court of  a  crime punishable  by            imprisonment for a  term exceeding  one year,"   18 U.S.C.               922(g)(1), any confusion was remedied by the district court's            instruction to the jury making the necessary connection:                      Second,   that   before   Patrick   Tracy                      possessed  the  firearm,   he  had   been                      convicted  in   a   court  of   a   crime                      punishable  by imprisonment for a term in                      excess of  one year.   That is,  a felony                                             __________________                      offense.   There  is no  dispute on  this                      _______                      issue.            (emphasis  added).    Notwithstanding  the  district  court's            instruction, it  would have  been preferable had  the parties            stipulated in the statutory language, i.e., "convicted in any                                                  ____            court  of  a crime  punishable  by  imprisonment  for a  term            exceeding one year."                                          -10-            argues in response that evidence of Tracy's prior convictions            was  properly  introduced  to  impeach   Tracy's  credibility            pursuant to Fed. R. Evid. 609.  We agree with the Government.                      In United  States v. Tavares,  21 F.3d 1  (1st Cir.                         ______________    _______            1994)  (en banc), we recently held  that "evidence beyond the            fact of the prior  conviction is inadmissible absent adequate            trial  court  findings that  its  noncumulative  relevance is            sufficiently compelling to survive the balancing test of Fed.            R.  Evid. 403."  Id. at 5.   Hence, given the stipulation and                             ___            the district  court's instruction,  it would have  been error            here to  have admitted evidence  of the prior  convictions in            order  to  prove that  Tracy had  been  convicted of  a crime            punishable  by imprisonment for over  one year.   But we also            stated in Tavares "that in some cases evidence concerning the                      _______                     _______________________            nature  of  the  prior  conviction  will  be  admissible  for            _____________________________________________________________            impeachment or  other reasons, despite its  lack of probative            ___________            value on the prior conviction element of the crime."  Id.  at                                                                  ___            6 (emphasis added).   In  this context, while  Fed. R.  Evid.            404(b) states, inter alia,  that "[e]vidence of other crimes,                           __________            wrongs, or acts is not admissible to prove the character of a            person in order to show action in conformity therewith," Rule            609   allows  that,  under   certain  circumstances   and  in            appropriate  cases,   "[d]efendants  who  choose   to  become            witnesses on  their own behalf become  subject to impeachment                                         -11-            by  evidence of prior crimes," 2 Jack B. Weinstein & Margaret            A. Berger, Weinstein's Evidence    404[04], at 404-31 (1993).                       ____________________            This is so notwithstanding the Advisory Committee's awareness            "that, in virtually every case in which prior convictions are            used to impeach the testifying defendant, the defendant faces            a unique risk of prejudice  i.e., the danger that convictions                                        ____            that  would be  excluded  under Fed.  R.  Evid. 404  will  be            misused  by  a  jury  as propensity  evidence  despite  their            introduction solely for impeachment purposes."  Fed. R. Evid.            609 advisory committee's note, 1990 amendment.                       Here  Tracy took  the  stand, and  evidence of  his            prior  convictions  was  admissible   if  it  satisfied   the            requirements of  Fed. R. Evid. 609, which  states in relevant            part:                      (a)  General  rule.   For the  purpose of                      (a)  General  rule.                      attacking the credibility of a witness,                           (1)  evidence  that a  witness other                           than an accused  has been  convicted                           of  a  crime   shall  be   admitted,                           subject  to Rule  403, if  the crime                           was    punishable   by    death   or                           imprisonment in excess  of one  year                           under  the  law   under  which   the                           witness was  convicted, and evidence                           that an accused  has been  convicted                           of such a crime shall be admitted if                           the   court   determines  that   the                           probative  value  of admitting  this                           evidence  outweighs  it  prejudicial                           effect to the accused; and                            (2)  evidence  that any  witness has                           been  convicted of a  crime shall be                           admitted  if it  involved dishonesty                                         -12-                           or  false  statement, regardless  of                           the punishment.            The Government insists that under Fed. R. Evid. 609(a)(2) the            district court had no discretion  to exclude the evidence  of            Tracy's conviction for uttering a false prescription, as this            was  a  crime  of   dishonesty  offered  to  impeach  Tracy's            credibility  as a  witness.   The Government  is correct.   A            conviction for uttering a false prescription plainly involves            dishonesty or false statement.   See Fed. R. Evid.  609 notes                                             ___            of  conference committee,  H.R. No.  93-1597 ("By  the phrase            `dishonesty and false statement'  the Conference means crimes            such as  perjury or subornation or  perjury, false statement,            criminal fraud, embezzlement, or false pretense, or any other            offense in  the nature  of crimen  falsi,  the commission  of            which involves  some element  of  deceit, untruthfulness,  or            falsification bearing  on the accused's propensity to testify            truthfully.").     Moreover,   "[t]he   admission  of   prior            convictions involving  dishonesty and false statement  is not            within the discretion of the [district] [c]ourt."  Id.; e.g.,                                                               ___  ____            United  States v. Morrow, 977  F.2d 222, 228  (6th Cir. 1992)            ______________    ______            ("Rule 609(a)(2) . .  . clearly limits the discretion  of the            court  by  mandating   the  admission  of   crimes  involving            dishonesty or  false statements."), cert. denied,  113 S. Ct.                                                ____________            2969, 125 L. Ed. 2d 668 (1993); United States v. Kiendra, 663                                            _____________    _______            F.2d 349, 354 (1st Cir. 1981) ("[E]vidence offered under Rule            609(a)(2) is  not subject to the  general balancing provision                                         -13-            of Rule 403.").  Hence, we find no error in  the admission of            evidence  of  the  prior  conviction  for  uttering  a  false            prescription.                      Likewise, the Government insists that it was proper            to  cross-examine Tracy  about his  armed assault  and stolen            firearms  convictions pursuant  to  Fed.  R. Evid  609(a)(1).            Under this Rule, evidence that the accused has been convicted            of a crime will  be admitted if (1) "the crime was punishable            by death or imprisonment in excess of one  year under the law            under  which  the [accused]  was  convicted,"  Fed. R.  Evid.            609(a)(1), (2) the prior  conviction satisfies the time limit            requirements of Fed. R. Evid. 609(b), and (3) "the [district]            court determines  that the probative value  of admitting this            evidence outweighs  its prejudicial  effect to  the accused,"            Fed.  R. Evid. 609(a)(1).   The parties agree  that the first            two  of these  requirements have  been met.    They disagree,            however, about  whether the district  court properly balanced            the  probative  value  of   the  evidence  of  Tracy's  prior            convictions against its prejudicial effect.  According to the            Government,   evidence  of  Tracy's   prior  convictions  was            necessary to discredit his testimony on direct examination to            the  effect that  he  could  not  appreciate the  nature  and            quality  or  wrongfulness of  his  acts.   Specifically,  the            Government points  to the following colloquy  that took place            during Tracy's direct examination:                                         -14-                      Q.   Now  I  assume that  you  were aware                           that  you   can't  rob  supermarkets                           generally; correct?                      A.   Yes.                      Q.   On  this day, when this incident you                           just  described occurred,  what were                           you thinking about this?                      A.   I was thinking that it was the right                           thing to do.                      Q.   Why?                      A.   With everything that had been caving                           in on me, thoughts  [about] Vietnam,                           this, that, and the other thing, all                           the things to do with it, friends of                           mine   and   stuff  like   that,  my                           feelings towards it  and stuff  like                           that,  I  thought it  was  the right                           thing to do.            The   Government  says   that  evidence   of  Tracy's   prior            convictions, elicited on cross-examination,  discredited this            testimony by revealing that Tracy has been told repeatedly by            the judicial system that  conduct akin to that engaged  in on            May  18, 1991, is not "the right thing to do."  Tracy, on the                              ___            other hand, argues that evidence of his prior convictions was            not  probative as to his lack of credibility because he never            testified that he could not appreciate the nature and quality            or wrongfulness of the conduct for which he was charged, that            is, illegally possessing a gun.                            We    review    a   district    court's   probative            value/prejudicial  effect   decision  under  Fed.   R.  Evid.            609(a)(1)  for  abuse  of   discretion.    United  States  v.                                                       ______________                                         -15-            Mehrmanesh, 689 F.2d  822, 834  (9th Cir.  1982); see  United            __________                                        ___  ______            States v. Lipscomb, 702 F.2d 1049, 1068 n.69 (D.C. Cir. 1983)            ______    ________            (citing cases).  Here, the district court initially heard the            parties' arguments before  Tracy testified.   The prosecuting            attorney maintained that this "is a case about whether or not            [Tracy]  appreciated the wrongfulness of his acts.  And in my            view, the assertion that he states that he is     that he did            not appreciate the wrongfulness of his acts  falls apart when            a Judge has told him on seven occasions that I would offer               excuse  me, eight occasions, that it was wrong."  Counsel for            Tracy  responded   that  the   evidence   of  Tracy's   prior            convictions was being offered only to prove Tracy's character            in order to show that  he acted in conformity therewith.   In            light of  these arguments,  the district  court preliminarily            ruled:                           My tentative ruling  is that if  the                      defendant   does   not   testify  as   to                      wrongfulness or nature and quality of his                      conduct, that I would probably not permit                      impeachment  by  evidence of  these other                      felonies,  but  to  let   the  government                      reiterate  that the defendant is indeed a                      convicted felon.  And the reason for that                      is that if the testimony of the defendant                      does not  go to that issue  of whether he                      appreciated the nature and quality of the                      wrongfulness  of his  conduct on  May the                      18th, 1991, then  the probative value  of                      these  previous   felony  convictions  is                      quite  limited,   and  their  prejudicial                      effect is quite  severe because they  can                      of course  suggest to the  jury that  the                      defendant  is  a  dangerous   person  and                      provide risks of conviction on that score                                         -16-                      alone as opposed  to looking  at the  law                      and the facts in this case.                           On   the   other   hand,    if   the                      defendant's  testimony  does  go  to  the                      issue   of  whether   on  that   date  he                      appreciated the nature and quality or the                      wrongfulness  of  his  conduct,  then  it                      seems to  me that it would be appropriate                      and necessary to let  in at least some of                      the convictions to show that, indeed, the                      defendant  had  been  told   on  previous                      occasions that certain  kinds of  conduct                      were  wrongful  or  that the  nature  and                      quality of certain kinds of  conduct were                      subject to punishment.                                           After Tracy testified on  direct, but before cross-            examination, the Government asked  the district court to make            its final  ruling as  to the  admissibility of Tracy's  prior            convictions.  The district court decided:                           The defendant has in  fact testified                      about  wrongfulness, rightfulness  of the                      conduct, and the  question of whether  he                      was  aware  of  the quality,  nature  and                      quality of his acts[.]   [T]hat testimony                      has  come  out,  so  I  will  affirm  the                      original ruling . . . .            In explaining this decision, the district court said:                           The   issue  of   credibility  under                      [Rule]  609  is  with  respect  to  [the]                      offense  being made[.]   I have  to weigh                      the probative value versus  the prejudice                      that's involved, and  the testimony  here                      in terms of his  understanding as to what                      is  wrongful,  what  is  right,  and  his                      testimony concerning his  void and so  on                      in  his  mind[.]     I  think  there   is                      probative value here that  would outweigh                      the prejudice . . . .             To  mitigate  any  prejudice  to Tracy,  the  district  court            instructed the  jury:  "You've  heard testimony in  this case                                         -17-            about  prior criminal  convictions.   You  may consider  such            testimony about prior criminal convictions only  in assessing            the credibility of the person who was convicted."                      We are unable to say the district court abused  its            discretion  in the  balance it  struck between  the probative            value  of the  evidence  and its  prejudicial effect.   Tracy            pleaded not guilty  only by  reason of insanity.   A  central            issue,  therefore,  was whether  Tracy  could  understand the            nature and  quality or wrongfulness  of his conduct.   Before            Tracy took the stand, the district  court cautioned him that,            if he testified that he could not appreciate the wrongfulness            of his conduct on May 18, 1991, it would allow the Government            to  impeach his  testimony by  introducing evidence  of three            prior  convictions to show that Tracy had reason to know that            his  conduct  was improper.    Disregarding  this admonition,            Tracy  testified  that he  thought  that  robbing the  Shaw's            Supermarket  on May 18, 1991,  was the "right  thing to do."4            In  these  circumstances, the  district  court's decision  to            allow evidence of Tracy's  prior convictions for  impeachment            purposes was not error.                                           B.                                          B.                                            ____________________            4.  Notwithstanding  Tracy's suggestion  to the  contrary, we            think that the district  court could reasonably have inferred            from  this testimony that Tracy was saying that he thought it            was  acceptable for him to  possess a gun  when he robbed the            Shaw's Supermarket.                                          -18-                      Tracy  contends that the district court erroneously            defined the term "knowingly."   The district court instructed            the jury:                           First, [you must find]  that Patrick                      Tracy  knowingly  possessed a  firearm as                      charged.   There is  no dispute that  the                      object in question is a firearm,  but the                      parties do dispute whether  Patrick Tracy                      knowingly possessed it.                                         ***                           The word "knowingly" means  that the                      act    was     done    voluntarily    and                      intentionally.            Following  this   charge,  Tracy  objected  and   asked  "the            [district]   court   [to]  define   `knowingly'   as  meaning            deliberately, intentionally  and fully  aware of what  he was            doing."5   The district court declined,  explaining that such            an instruction would have  confused the jury by  blurring the            distinction   between  the  Government's   case  and  Tracy's            insanity defense, which  required him to prove  that he could            not understand the nature and quality or wrongfulness of  his            conduct.                      Tracy  argues that the  district court's refusal to            give his  requested instruction amounted  to reversible error            because  the jury was not informed that the Government had to            prove that he was fully aware of what he was doing on May 18,            1991.  According to Tracy, his entire defense was premised on                                            ____________________            5.  Tracy  asserts that  he  requested this  same instruction            before trial and during the pre-charge conference.                                           -19-            the  theory  that,  because  of   his  Post-Traumatic  Stress            Disorder, he was not fully aware of what he was doing when he            used a gun  to rob  the Shaw's Supermarket.   The  Government            responds that Tracy  was not entitled  to have his  requested            instruction  delivered  verbatim,  and  the  district court's            instruction  was   a  reasonable  explanation  of   the  term            "knowingly."  We find the Government's argument persuasive.                      The parties  have not  called to our  attention any            First Circuit  decisions discussing  the meaning of  the term            "knowingly."6     Published   opinions   and   pattern   jury            instructions from other circuits, however,  provide guidance.            To be  sure, some circuits  have embraced a  jury instruction            stating that "knowingly means  that a defendant realized what            he was  doing and was  aware of  the nature of  his conduct."            United States v. Lawson,  780 F.2d 535, 542 (6th  Cir. 1985);            _____________    ______            e.g.,  Federal  Criminal  Jury  Instructions  of the  Seventh            ____            Circuit, Instruction  No. 6.04,  pp. 86-87 (1980)  ("When the            word `knowingly' is used in these instructions, it means that            the defendant realized what he was doing and was aware of the            nature of  his conduct,  and did not  act through  ignorance,            mistake or accident . . . .");  Manual of Model Criminal Jury                                            ____________________            6.  Tracy does  cite United States v. Couming,  445 F.2d 555,                                 _____________    _______            556-57 (1st Cir.), cert. denied, 404 U.S. 949, 92 S. Ct. 291,                               ____________            30  L.  Ed. 2d  266 (1971),  as  authority for  his proffered            instruction.  We agree with the finding below, however, that,            while it is true  that the district court in  Couming defined                                                          _______            "knowingly" as Tracy seeks to have it defined here, the court            of appeals did not review the propriety of that definition.                                          -20-            Instructions  for  the Ninth  Circuit,  Instruction  No. 5.06            (1992) ("An act is  done knowingly if the defendant  is aware            of  the  act and  does  not  act  [or  fail to  act]  through            ignorance, mistake,  or accident  . . . .");  see also  Model                                                          ___ ____            Penal  Code    2.02(2)(b)(i) ("A  person acts  knowingly with            respect to a material element of an  offense when: (i) if the            element  involves the nature of  his conduct or the attendant            circumstances, he is aware that his conduct is of that nature            or that  such  circumstances exist  . .  . .");  1 Edward  J.            Devitt  et  al., Federal  Jury  Practice  and Instructions                                _________________________________________            17.04,  at 626 (4th ed. 1992) ("The term `knowingly,' as used            in these instructions  to describe the alleged  state of mind            of  the defendant,  means that [he]  [she] was  conscious and            aware of [his] [her]  [action] [omission], realized what [he]            [she] was doing or what was happening around [him] [her], and            did not [act] [fail to act] because of ignorance, mistake, or            accident.").                        Other  circuits  and  commentators,  however,  have            endorsed a  definition of  the term "knowingly"  that largely            coincides with  the instruction  given by the  district court            here.  E.g., Pattern Jury Instructions of the District Judges                   ____            Association of the Fifth Circuit, Criminal Cases, Instruction            No. 1.35 (1990) ("The word `knowingly,' as that term has been            used  from time to time in these instructions, means that the            act was  done voluntarily  and intentionally, not  because of                                         -21-            mistake  or  accident."); Pattern  Jury  Instructions  of the            District Judges Association of the Eleventh Circuit, Criminal            Cases,   Basic  Instruction   No.   9.2  (1985)   ("The  word            `knowingly,' as that term has been used from time to  time in            these instructions,  means that the act  was done voluntarily            and intentionally and not  because of mistake or accident.");            1A  Leonard B. Sand et  al., Modern Federal Jury Instructions                                         ________________________________            35-28 (1993) ("An act  is done knowingly if you find that the            defendant acted purposely and voluntarily, and not by mistake            or accident.") (citing cases).                        We   think  the  district   court's  definition  of            "knowingly,"  which  is  commonly accepted,  was  appropriate            here.  See United States v. Noone, 913 F.2d 20,  30 (1st Cir.                   ___ _____________    _____            1990) ("[I]t  is well settled  that [a district]  court `need            not  give  instructions  in  the  precise  form  or  language                                            ____________________            requested  by  the  defendant.'"  (quoting  United States  v.                                                        _____________            7.  The district court charged the jury:            Beltran,  761 F.2d 1, 11 (1st Cir. 1985))), cert. denied, 500            _______                                     ____________                      For you to find  Patrick Tracy not guilty only                 by reason  of insanity, you must  be convinced that            U.S.  906, 111  S. Ct. 1686,  114 L.  Ed. 2d 81  (1991).  The                 Patrick Tracy  has proved  each of these  things by                 clear and  convincing evidence: First, that  at the            district   court  felt  that  Tracy's  proffered  instruction                 time of the offense,  Patrick Tracy suffered from a                 severe mental disease or  defect.  Second, that the            misleadingly blurred the distinction between the Government's                 mental  disease   or  defect  prevented   him  from                 understanding   the   nature    and   quality    or            burden and  Tracy's defense.   The definition  of "knowingly"                 wrongfulness of his conduct.            put  forward by  the  district  court  in no  sense  unfairly                                         ***            weakened Tracy's  insanity defense, as to  which the district                      If you find that the government has proved all                 the  elements of  the offense  beyond  a reasonable            court rendered  a clear and  accurate instruction.7   Had the                 doubt and  that Patrick  Tracy has proven  by clear                 and convincing evidence that he was not sane at the                 time of the  offense, you will find him  not guilty                 only by reason of insanity.                                         -22-            jury thought that Tracy, because of his Post-Traumatic Stress            Disorder,  was unable to appreciate the nature and quality or            wrongfulness of his  conduct, it could have,  pursuant to the            district  court's  instructions, returned  a  verdict of  not            guilty only by reason of insanity.                                          C.                                          C.                      Tracy's third  argument is that the  district court            erred in refusing to instruct the jury on the consequences of            a   not  guilty   only   by  reason   of  insanity   verdict.            Specifically, Tracy requested the following charge:                      [I]f you find Patrick Tracy not guilty by                      reason of insanity,  it becomes the  duty                      of this  court to commit Patrick Tracy to                      a suitable hospital facility.            The  district court  declined  to give  such an  instruction,            explaining at length its reasons for its decision.                      We find  no error  in the district  court's ruling.            Recently, in Shannon v. United States,    U.S.   , 114 S. Ct.                         _______    _____________            2419 (1994), the United States Supreme Court concluded that a            federal district court is not  "required to instruct the jury                                      ___            regarding  the consequences to the defendant  of a verdict of            `not guilty by reason of insanity,' either under the Insanity            Defense  Reform Act  of 1984  [, 98  Stat. 2057  (codified as            amended at 18  U.S.C.    17, 4241-4247),]  or as a matter  of            general  federal  practice."   Shannon, 114  S. Ct.  at 2422.                                           _______            Although the  Court recognized  "that an instruction  of some                                         -23-            form may be necessary under  certain limited circumstances,"8            id. at  2428, Tracy  has not argued  that such  circumstances            ___            exist here, and our review of the record has revealed none.                                          D.                                          D.                      Tracy  argues that  the  district  court  erred  in            sentencing him under the Armed Career Criminal Act (ACCA), 18            U.S.C.   924(e)(1), which states:                           In the case of a person who violates                      section  922(g) of  this  title  and  has                      three previous convictions  by any  court                      referred to in section 922(g)(1)  of this                      title for  a violent felony  or a serious                      drug  offense,  or  both,   committed  on                      occasions  different  from  one  another,                      such person shall be fined  not more than                      $25,000  and  imprisoned  not  less  than                      fifteen  years, and,  notwithstanding any                      other provision of  law, the court  shall                      not suspend  the sentence of,  or grant a                      probationary  sentence  to,  such  person                      with  respect  to  the  conviction  under                      section 922(g), and such person shall not                      be  eligible for  parole with  respect to                      the    sentence   imposed    under   this                      subsection.            While he concedes that he has two "previous convictions" that            satisfy the  "violent felony" standard of    924(e)(1), Tracy            maintains that the district court could not, for two reasons,            use a  1979 Massachusetts conviction for  assault and battery            on a police officer, to which he pled guilty on September 25,                                            ____________________            8.  The  Court said,  for  example, that,  if  "a witness  or            prosecutor  states  in  the  presence  of  the  jury  that  a            particular  defendant would  `go free'  if found  [not guilty            only  by reason  of insanity],  it may  be necessary  for the            district court  to intervene  with an instruction  to counter            such a misstatement."  Shannon, 114 S. Ct. at 2428.                                    _______                                         -24-            1979, as the  third predicate  felony.   First, Tracy  claims            that the 1979 conviction is constitutionally  invalid because            he  was denied his right to have appointed counsel.9  Second,            he  asserts that  the Government failed  to provide  him with            adequate  notice  that  it  intended  to  rely  on  the  1979            conviction in seeking sentence enhancement under   924(e)(1).            We address these arguments separately.                                            i.                                          i.                      In United States v. Paleo, 967 F.2d 7, 11 (1st Cir.                         _____________    _____            1992),  we held that "a federal defendant may challenge, in a            sentencing  proceeding, the  constitutional validity  of past            convictions, used to increase his federal sentence."  We said            that, if a defendant should seek to contest the validity of a            properly evidenced past conviction    that is, one documented            by  a certified  copy of a  court record  of conviction  or a            presentence  report's account  of a  past conviction     that            appears constitutionally valid on its face, "he must say that            he wishes  to do so,  explain the constitutional  defect, and            convince the sentencing court  that the conviction was indeed            obtained in  violation of  the federal Constitution,"  id. at                                                                   ___            13.            Recently, however,  our decision in  Paleo was                                                                _____            all  but  overruled by  the  United States  Supreme  Court in                                            ____________________            9.  In support of this argument, Tracy submitted, inter alia,                                                              __________            an  affidavit in which he stated, among other things, that he            "was not  represented by any attorney  regarding this claimed            conviction of assault and battery on a police officer."                                         -25-            Custis v. United States,    U.S.   , 114 S.  Ct. 1732 (1994).            ______    _____________            There  the   Court  held   that,  in  a   federal  sentencing            proceeding, "a  defendant has no .  . . right (with  the sole            exception of  convictions obtained in violation  of the right            to counsel)" to "collaterally attack the validity of previous            state convictions that are used to enhance his sentence under            the ACCA."  Id. at 1734.  In refusing "to extend the right to                        ___            attack  collaterally  prior  convictions  used  for  sentence            enhancement  beyond  the  right  to  have  appointed  counsel            established in Gideon,"10  id. at 1738,  the Court said,  "We                           ______      ___            think that  since the  decision in Johnson  v. Zerbst11  more                                               _______     ______            than half a century ago, and running through our decisions in            Burgett12  and   Tucker,13  there  has  been   a  theme  that            _______          ______            failure to  appoint counsel for  an indigent defendant  was a            unique   constitutional  defect,"   id.  (footnotes   not  in                                                ___            original).                      Because   Tracy   challenges   the   constitutional            validity of  his 1979 state  court conviction on  the grounds            that he was not  represented by counsel, his argument  is not                                            ____________________            10.  Gideon v. Wainwright, 372 U.S. 335,  83 S. Ct. 792, 9 L.                 ______    __________            Ed. 2d 799 (1963).            11.  Johnson v. Zerbst,  304 U.S. 458, 58 S.  Ct. 1019, 82 L.                 _______    ______            Ed. 1461 (1938).            12.  Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed.                 _______    _____            2d 319 (1967).            13.  United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30                 _____________    ______            L. Ed. 2d 592 (1972).                                         -26-            foreclosed by Custis.  In this  limited respect, our decision                          ______            in Paleo  still controls.   Accordingly, we  consider whether               _____            Tracy has  demonstrated by  a preponderance of  the evidence,            see United States v.  Wilkinson, 926 F.2d 22, 28  (1st Cir.),            ___ _____________     _________            cert. denied, 501 U.S. 1211,  111 S. Ct. 2813, 115 L.  Ed. 2d            ____________            985  (1991), that the 1979 conviction  was indeed obtained in            violation   of  Tracy's  constitutional  right  to  appointed            counsel.                          The record  indicates  that Tracy  was arrested  on            June  3,  1979, for  uttering  a false  prescription  and for            assault and battery on the arresting Town of Brookline police            officer.  Thereafter, the  Brookline Division of the District            Court Department issued an order, which read:                      The  Court  has determined  that [Patrick                      Tracy] is indigent and that [the] gravity                      of the charge  against the said defendant                      . . . require[s]  that  the defendant  be                      represented  by  counsel.   The  clerk is                      hereby  directed  to  immediately  notify                      . . . Neil  Rossman of  the determination                      of the court.            The  docket  sheet  from  the Municipal  Court  of  Brookline            indicates that  Attorney Rossman  appeared for Tracy  on June            25, 1979, but was  succeeded on August 20, 1979,  by Attorney            Dianne  Hayes.   Rossman's  exodus  is  explained by  entries            indicating  that  he  was fined  for  failing  to  appear for            hearings scheduled for  August 2, and  20, 1979, causing  the            case to be  continued on  those two occasions.   The  entries            further show that  Tracy finally pled guilty  to both charges                                         -27-            on  September  25, 1979,  at which  time,  insofar as  can be            gleaned  from the  docket sheet,  he  was represented  by his            listed attorney, Dianne Hayes.   These entries are consistent            with  Hayes's  statement in  an  affidavit  submitted to  the            district  court  that  she  remembers "being  called  on  the            telephone  on or about August  20, 1979, by  someone from the            District Court  of Northern Norfolk, Dedham,  and being asked            if  [she] would  accept an  appointment for  a case  in which            Attorney Neil  Rossman had been previously  appointed, but in            which case  he had failed to  appear."  Hayes did  not say in            her  affidavit   whether  she   accepted   or  rejected   the            appointment, but she  did state that she  had "serious doubts            that [she] represented Patrick Tracy at the time he plead[ed]            guilty  to . . . assault  and  battery on  a police  officer,            because [she was]  unable to locate  a file for him."   Hayes            said she  did not  believe that she  had ever thrown  away or            destroyed  a  closed  file.   She  noted,  however,  that, on            October  24, 1987, the basement of her office, where she kept            her closed files, was  flooded and that, as a result, some of            the older files were placed out of order.                      The  district  court  decided,  in  light  of  this            record, that Tracy had  failed to show by a  preponderance of            the  evidence that he was denied his right to the appointment            of counsel.   We  find no  error.  The  court documents  show            that,  after Tracy  was  arrested on  June  3, 1979,  it  was                                         -28-            determined  that  he was  an  indigent defendant  in  need of            counsel.  Attorney Neil Rossman was assigned to his case, and            the  docket entries reveal that he made an appearance on June            25, 1979.   The docket entries  further show that,  following            Rossman's failure  to appear  and two continuances,  Attorney            Dianne Hayes became Tracy's attorney of record on  August 20,            1979.  There is no indication that Hayes thereafter ceased to            represent Tracy in these matters  or was absent on  September            25,  1979,  when  he pled  guilty.    There  were no  further            continuances,  and  no fines  were  noted  as levied  against            Hayes, as  they  had been  against  Rossman, for  failing  to            appear at scheduled hearings.                      The  evidence  casting   doubt  on  whether   Tracy            received  legal  representation  is limited  to  Tracy's  and            Hayes's affidavits.  The district court did not  find Tracy's            affidavit  credible given Tracy's  strong incentive  to avoid            the  ACCA.  With regard to Hayes's affidavit, Hayes could not            specifically  recollect whether or not she represented Tracy,            and the district  court found there  was no suggestion  "that            she  turned down the appointment that she was asked to accept            by the  court."   Moreover, the  district court  thought that            Hayes's  inability to  locate a file  that would  confirm her            representation of Tracy might well  be explained by the flood            in her  basement that disrupted her filing system.  We do not            find  clear error  in  the district  court's conclusion  that                                         -29-            Tracy had failed to  prove, relative to the  1979 conviction,            that he  was unrepresented  by counsel, in  violation of  his            constitutional right.                                         ii.                                         ii.                      Tracy  also  argues  that  it  was  error  for  the            district court to use the 1979 assault and battery conviction            as one of  three predicate violent felonies under   924(e)(1)            because  he   did  not  receive  adequate   notice  that  the            Government intended to rely  on it.  Tracy contends  that the            indictment,  which  he claims  he had  a  right to  count on,            listed only two felonies  that would satisfy the requirements            of    924(e)(1),  and did  not mention  the 1979  assault and            battery  conviction.   He  says he  did  not learn  that  the            Government intended to use  that conviction until he received            the presentence  report.  This delay,  he insists, prejudiced            his  defense strategy and his decision as to whether to plead            guilty  or go  to trial.   He  suggests that  the indictment,            having listed  some of Tracy's  prior felonies that  would be                           ____            used  for sentence  enhancement, should  have listed  all the                                                                  ___            predicate felonies.                      The district  court rejected this same  argument at            Tracy's sentencing hearing,  finding our  decision in  United                                                                   ______            States  v. Rumney, 867 F.2d 714 (1st Cir.), cert. denied, 491            ______     ______                           ____________            U.S. 908, 109  S. Ct. 3194, 105  L. Ed. 2d 702  (1989), to be            dispositive.  We agree.   In Rumney, as here,  the Government                                         ______                                         -30-            informed the defendant  before trial  that it  would seek  an            enhanced sentence under  the ACCA, but failed to  include all            the predicate felonies in  the indictment.  We held  that the            Government need not allege in the indictment the three  prior            felonies that it  will use to enhance  a defendant's sentence            under    924(e)(1).   Id.  at 717-19;  e.g, United  States v.                                  ___              ___  ______________            Alvarez,  972 F.2d 1000, 1006  (9th Cir. 1992) (rejecting the            _______            appellant's  argument  that  "the  district  court  erred  in            considering  three  prior  convictions  not  listed   in  the            indictment, and for  which the  government did  not file  [a]            written  notice of intention  to use prior  to trial"), cert.                                                                    _____            denied, 113 S. Ct. 1427, 122 L. Ed. 2d 795 (1993).            ______                      The Sixth  Circuit's decision  in United  States v.                                                        ______________            Pedigo, 879 F.2d 1315 (6th Cir. 1989), which Tracy relies on,            ______            is  distinguishable.   There, the  record suggested  that the            district court  had relied  upon only two  prior convictions,            instead  of the necessary three.  In refusing to take account            of a third prior felony conviction, which had been introduced            for  impeachment  purposes at  trial,  the  court of  appeals            stated that the defendant may not ever have received adequate            notice  that such  conviction would  be used  to enhance  his            sentence.   Id.  at 1319.   Here,  by contrast,  the district                        ___            court  found that  Tracy received  ample notice  of the  1979            conviction:                        There  has been  abundant  time  for  the                      defendant to respond and to challenge the                                         -31-                      conviction as he has  done, and so far as                      any requirement that the crime be brought                      to  his attention at  an earlier stage is                      concerned, he was at  least made aware of                      it  by the  time  of trial  in connection                      with the preparation of exhibits  for use                      at trial,  and  I  don't  find  that  any                      further or earlier notice was required on                      that score.            We  are  satisfied that  the district  court  did not  err in            considering Tracy's 1979 conviction in enhancing his sentence            under   924(e)(1).                      Affirmed.                      ________                                         -32-
