United States v. Pratt ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 18, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-30446
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
versus
CARL PRATT,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50075-ALL
_________________________________________________________________
Before JOLLY and DAVIS, Circuit Judges, and ENGELHARDT, District
Judge.1
PER CURIAM:2
Carl Pratt appeals his conviction and sentence for being a
felon in possession of a firearm. He argues that the district
court erred by excluding evidence of his lack of intent to possess
a weapon and that his sentence was improperly enhanced based on
facts that were neither charged in the indictment nor stipulated.
We AFFIRM.
1
District Judge of the Eastern District of Louisiana, sitting
by designation.
2
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
During the execution of a search warrant at Pratt’s residence,
law enforcement officers found a shotgun underneath the bed in the
master bedroom. Pratt, a convicted felon, was charged with
possession of the weapon. A jury found him guilty, and he was
sentenced to 104 months of imprisonment and a three-year term of
supervised release.
II
On appeal, Pratt argues that the district court erred by
excluding evidence of his lack of intent to possess the shotgun and
that his sentence was improperly enhanced based on facts that were
neither charged in the indictment nor stipulated. We discuss each
issue separately.
A
We address first the challenged evidentiary ruling. At trial,
Government witnesses testified that when the shotgun was found in
Pratt’s residence during the execution of the search warrant in
August 2002, Pratt stated that he knew the gun was there, and knew
that he was not supposed to have it, but that he had borrowed it
from a friend for protection of his family.
The defense called Pratt’s wife’s cousin as a witness. When
defense counsel asked him to describe an incident in 2001 when
Pratt stated his belief that the gun had been removed from his
residence, the district court sustained the Government’s hearsay
objection.
2
The defense then called Pratt’s wife to testify. When she was
asked about a statement her husband made in 2001 reflecting his
belief that the gun was missing, the district court sustained the
Government’s hearsay objection.
Pratt then took the stand in his own defense. He testified
that he looked for the gun to dispose of it because he knew that he
was subject to search by the probation office, but could not find
it; that he asked his wife what had happened to the gun when he
found that it was missing; that he accused one of his wife’s
cousins of stealing the gun; and that he did not know the gun was
under the bed when the search warrant was executed.
In a proffer, Pratt’s wife testified that her cousin watched
their house when they took a trip; that, when they returned, Pratt
looked for the gun but could not find it; and that Pratt accused
her cousin of having taken the gun. She testified that Pratt
therefore did not know the gun was in the house on the day the
search warrant was executed, because he thought it had been stolen.
Pratt argues that the district court erred by excluding the
testimony of his wife and her cousin that he did not know the gun
was in his house when the search warrant was executed, because he
thought the gun had been stolen. Ordinarily, we review a district
court’s evidentiary rulings for abuse of discretion. United States
v. Avants, 367 F.3d 433, 443 (5th Cir. 2004). However, that
standard applies only to the grounds proffered at trial. See
United States v. Ahmad, 101 F.3d 386, 392 (5th Cir. 1996) (“Our
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examination of the exclusion of evidence is limited to the grounds
that were proffered for its admission at trial.”). “[I]n the
absence of a proper objection, we review only for plain error.”
Avants, 367 F.3d at 443. Under the plain error standard, we have
the discretion to correct a plain error that affects the
defendant’s substantial rights, but generally will not do so unless
a failure to correct the error will seriously affect the fairness,
integrity, or public reputation of judicial proceedings. Fed. R.
Civ. P. 52(b); Avants, 367 F.3d at 443, 446; United States v.
Calverley, 37 F.3d 160, 163-64 (5th Cir. 1994) (en banc).
At trial, Pratt objected to the exclusion of the evidence on
two grounds: (1) the evidence is not hearsay, because it was not
offered to prove that the gun had been stolen, but instead to show
his lack of knowledge that the gun was still in the house;3 and (2)
if the testimony is hearsay, it is within the exception of Federal
Rule of Evidence 803(3) because it was offered to establish his
state of mind negating his intent to possess the gun.4
3
Federal Rule of Evidence 801(c) defines “hearsay” as “a
statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the
matter asserted.”
4
Rule 803(3) is one of the exceptions to the hearsay rule. It
authorizes the admission of “[a] statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates to the
execution, revocation, identification, or terms of declarant’s
will.”
4
On appeal, Pratt reiterates his argument that the excluded
testimony is not hearsay because it was not offered to prove that
the gun had been stolen, but to show his lack of intent to possess
the gun, based on his belief that it had been stolen.5 For the
first time on appeal, Pratt also argues that the testimony should
have been admitted under Federal Rule of Evidence 801(d)(1)(B) as
a prior consistent statement to rebut the Government’s argument
that he fabricated his testimony.6 The latter contention is
reviewed only for plain error because Pratt did not assert Rule
801(d)(1)(B) as a basis for admitting the evidence at trial.
Avants, 367 F.3d at 443.
In support of his contentions, Pratt relies on several Fifth
Circuit opinions. In the first, United States v. Jackson, 621 F.2d
216 (5th Cir. 1980), the defendant, a bank president, was convicted
for making a false notation on a loan memo regarding the purpose of
the loan. His defense was that the notation was not made with
knowledge of its falsity because the borrower had told him that was
5
The Government asserts that Pratt has abandoned his
contention that the testimony is admissible under Rule 803(3). We
disagree. Although Pratt’s brief cites Rule 803(3) only in the
summary of the argument, he nevertheless argues that the testimony
was offered to establish his state of mind negating his intent to
possess the gun, and not for the truth of whether the gun had
indeed been stolen.
6
Rule 801(d)(1)(B) provides that a statement is not hearsay if
“[t]he declarant testifies at the trial or hearing and is subject
to cross-examination concerning the statement, and the statement is
... consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of recent
fabrication or improper influence or motive”.
5
the purpose of the loan. The defendant attempted to testify about
that conversation with the borrower at trial, but the district
court excluded the proffered testimony on hearsay grounds. Our
court held that the district court improperly excluded the
testimony because it was not offered for its truth, but was offered
to establish what the defendant thought was the purpose of the
loan, and therefore it was not hearsay under Rule 801. Id. at 219.
The court also held that the Government had breached a pretrial
agreement with the defendant; that the defendant was prejudiced by
the breach; and that the district court’s failure to balance the
potential for prejudice against the reason for the breach
constituted reversible error. Id. at 221.
Pratt also relies on United States v. Parry, 649 F.2d 292 (5th
Cir. 1981). In that case, our court found reversible error in the
exclusion of an out-of-court statement made by the defendant to his
mother. The defendant was charged with drug offenses. Two
undercover agents testified for the Government that the defendant
had acted as an intermediary in arranging drug transactions between
the agents and the sellers. Parry’s defense was that he knew that
the agents were undercover law enforcement officers and that he was
working for them, assisting them in locating drug dealers. He
testified that, shortly after he met one of the agents, in response
to an inquiry from his mother about the identity of the person who
had frequently telephoned her home asking to speak to him, he told
her that it was a narcotics agent with whom he was working. He
6
called his mother as a witness, but the trial court excluded her
testimony on hearsay grounds. Our court held that Parry’s out-of-
court statement to his mother was not hearsay under the definition
in Rule 801(c), because it was not offered to prove the truth of
the matter asserted, but was instead offered to establish that
Parry had knowledge of the agent’s identity. Id. at 294-95. The
court also held that the statement was admissible under Rule
801(d)(1)(B) as a prior consistent statement offered to rebut the
Government’s charge that Parry had fabricated his story. Id. at
295-96. The court concluded that the error was not harmless
because it was the only available evidence that could corroborate
Parry’s story that he had known of the agents’ identities. Id. at
296. Moreover, because Parry had testified about his conversation
with his mother, the court stated that the jury might have assumed
that the conversation did not occur because Parry did not call his
mother to corroborate his testimony. Id.Relying on Parry, the defendant in United States v. Gonzalez,
700 F.2d 196 (5th Cir. 1983), also cited by Pratt, argued that the
court committed reversible error by excluding a prior consistent
statement that he had made to his wife. The defendant was charged
with drug offenses. He drove a co-defendant’s car from Laredo,
Texas to McAllen, Texas. At trial, he testified that he did not
know why he was asked to drive the car to McAllen, but that he did
it as a favor and wanted to see some farm implements in McAllen.
Id. at 200. The district court excluded the testimony of his wife
7
that he had told her that her brother had asked him to bring the
car to McAllen and that he was going to look at machinery while
there. Id. at 201. Our court stated that the testimony was
admissible under Rule 801(d)(1)(B), because the defendant “offered
his wife’s testimony in response to the government’s evidence and
in anticipation of the government’s inevitable attack on his own
testimony.” Id. at 202. The court held, however, that the error
was harmless because the defendant presented to the jury his reason
for driving to McAllen, and the jury rejected it. Id. The court
distinguished Parry on the grounds that the evidence was more
closely balanced in that case. It also noted that Gonzalez’s story
was “incredible on its face.” Id. Finally, the court found it
significant that before Parry’s mother’s testimony was excluded,
Parry had told the jury that he had told his mother that he was
working with undercover narcotics agents. Gonzalez, however,
“never told the jury that he had told his wife the same story.”
Id.The final case relied on by Pratt is United States v. Cantu,
876 F.2d 1134 (5th Cir. 1989). The defendant was charged with drug
crimes and his defense was entrapment. The district court did not
allow the defendant to testify about a confidential informant’s
alleged persistence in trying to get him to secure customers for
the informant’s illicit drug activities, holding that the
statements were hearsay. Id. at 1136. Our court held that the
proffered statements were not hearsay because they were offered as
8
evidence of the defendant’s state of mind, and their significance
was “solely in the fact that they were made; the truth of the
statements is irrelevant.” Id. at 1137. The error was not
harmless because it “deprived Cantu of a critical element of his
entrapment defense.” Id.The Government argues that Pratt’s own trial testimony is
inconsistent with regard to his alleged belief that the gun had
been stolen. On the one hand, he testified that he accused his
wife’s cousin of stealing the gun because when he looked for the
gun and did not see it under the bed, he thought the gun was gone;
and that he was surprised when the officers found the gun because
he had thought for at least six months, maybe longer, that the gun
was gone. On the other hand, he testified later that the gun was
a “house gun” and that when he “placed that gun there, I never went
back to touch it or look at it or nothing. I placed it there for
the protection of my home and my family.” The Government asserts
that Pratt’s belief that the gun was no longer under the bed
because it had been stolen was a mistaken belief based on his
stated inability to find it, and that the only purpose his wife’s
testimony could have served was as corroboration of Pratt’s
testimony that months before he was arrested he accused his wife’s
cousin of stealing the gun. The Government maintains that that
circumstance is only marginally relevant to Pratt’s knowledge nine
months later.
9
The Government argues that the testimony was inadmissible
under Rule 803(3) because it was offered to prove that Pratt had
the belief that the gun had been stolen at some distant time in the
past, which was irrelevant to his belief in August 2002. It
asserts that Pratt’s wife’s testimony about events nine months
earlier is not evidence of his state of mind in August 2002.
The Government argues that the testimony was not admissible
under Rule 801(d)(1)(B) (which Pratt did not assert as a basis for
admissibility at trial), because the Government did not argue that
Pratt’s story was a recent fabrication, the basis for admissibility
as a prior consistent statement. At the time the testimony was
sought to be introduced, Pratt had not yet testified, so there
could be no assertion by the Government that this was recently
fabricated testimony. The Government asserts that Pratt’s
testimony brought to the jury’s attention his belief that the
weapon had been stolen, and no reasonable juror would have given
his wife’s corroborating testimony much weight in the face of
Pratt’s other testimony and the testimony of the Government’s
witnesses.
Pratt has failed to satisfy his burden of showing that the
district court committed plain error in excluding the testimony of
his wife and her cousin as prior consistent statements under Rule
801(d)(1)(B). At the time the district court excluded the
testimony of Pratt’s wife and her cousin, Pratt had not testified.
Therefore, there was no charge of recent fabrication to rebut.
10
Even assuming that the exclusion of the testimony constituted a
plain error, Pratt has not shown that such error affected his
substantial rights. As the Government noted, his own trial
testimony was inconsistent regarding his purported belief that the
gun had been stolen from under his bed.
Furthermore, the cases that he relies on in support of his
contention that the testimony was admissible because it was not
hearsay or, alternatively, because it was within the exception of
Rule 803(3), are distinguishable. Pratt’s wife and her cousin
testified before Pratt took the stand in his own defense.
Therefore, at the time the evidence at issue was excluded, he had
not told the jury about his statements to his wife or her cousin
regarding his belief that the cousin stole the gun. This case is
thus distinguishable from Parry, in which the defendant told the
jury about his conversation with his mother before his mother’s
corroborating testimony was excluded. Furthermore, unlike the
defendants in Jackson and Cantu, Pratt was able to offer his
explanation to the jury, which obviously rejected it as
unbelievable. It is therefore unlikely that the jury would have
believed Pratt’s story had it been allowed to hear the
corroborating testimony of Pratt’s wife and her cousin, especially
in the light of Pratt’s own inconsistent trial testimony that he
placed the gun under the bed for the protection of his family and
never went back to touch it or look at it. See Gonzalez, 700 F.2d
at 202 (holding that error in excluding corroborating evidence was
11
not reversible because defendant presented his story to the jury).
Moreover, as in Gonzalez, the excluded testimony could not
demonstrate the timing of Pratt’s knowledge -- his belief in 2001
that the gun had been stolen by his wife’s cousin because he could
not find it under his bed does not preclude his having discovered
that the gun was still there prior to August 2002 when the agents
found it during their execution of the search warrant. See id.Under these circumstances, even if we assume that the district
court erred by failing to admit the testimony as non-hearsay or as
falling within the exception in Rule 803(3), any error in excluding
the testimony was harmless.
B
For the first time on appeal, Pratt argues that his sentence
was improperly enhanced based on facts that were neither charged in
the indictment nor stipulated. According to the testimony of a
federal agent at the sentencing hearing, during the execution of
the search warrant, the officers found 27 bags of marijuana
packaged for sale in Pratt’s bedroom, where the shotgun was also
found. In addition, they found ammunition and other drug-related
items, including plastic bags containing marijuana residue and
digital scales. The Presentence Report states that, at the same
time that Pratt admitted to one of the agents that he possessed the
firearm, he also admitted that he was a drug dealer, that he had
sold and cooked cocaine in the past, and that he then sold
marijuana to support his family.
12
The district court increased Pratt’s base offense level by
four levels pursuant to U.S.S.G. § 2K2.1(b)(5), which provides that
“[i]f the defendant used or possessed any firearm or ammunition in
connection with another felony offense ... increase by 4 levels.”
Pratt also received a two-level increase in his offense level for
obstruction of justice based on the district court’s finding that
he committed perjury when he testified at trial.
The parties filed supplemental briefs following the Supreme
Court’s decision in United States v. Booker, 125 S.Ct. 738 (2005).
Pratt argued that the district court erred by increasing his
sentence based on facts that were not alleged in the indictment or
stipulated, and that the error affected his substantial rights
because his guideline range increased from 51-63 months to 92-115
months. The Government argued that Pratt has not met his burden of
establishing that any plain error affected his substantial rights,
because he cannot establish that his sentence would be different
under advisory guidelines. The Government observes that the
district court imposed a sentence of 104 months, more than a year
higher than the 92-month sentence at the bottom of the guideline
range calculated for Pratt. It therefore contends that the
district court would not have imposed a lower sentence, even if it
had discretion to do so.
Because Pratt did not object to the sentence enhancements on
constitutional grounds in the district court, our review is for
plain error. United States v. Mares, ___ F.3d ___, 2005 WL 503715,
13
at *7. Pratt has established Booker error because his sentence was
enhanced based on findings of fact that were not found by the jury
or admitted by Pratt. Id. at *8. In the light of Booker, the
error is plain. See id. (citing Johnson v. United States, 520 U.S.
461, 468 (1997)).
Pratt’s challenge fails, however, under the third prong of the
plain error analysis, which requires a showing that the plain error
affected the defendant’s substantial rights. To make such a
showing, the defendant must show that the error “affected the
outcome of the district court proceedings.” Id. (quoting United
States v. Olano, 507 U.S. 725, 734 (1993)). To meet that standard,
the party claiming error “must demonstrate a probability
‘sufficient to undermine confidence in the outcome.’” Id. (quoting
United States v. Dominguez Benitez, 124 S.Ct. 2333, 2340 (2004)).
Thus, to satisfy the third prong of the plain error analysis,
Pratt has the burden of demonstrating a reasonable probability that
the district court would have imposed a lower sentence under
advisory Sentencing Guidelines. Mares, 2005 WL 503715, at *9. As
in Mares, we do not know what sentence the district court would
have imposed had it known at the time of Pratt’s sentencing that
the Sentencing Guidelines were advisory rather than mandatory.
There is nothing in the record to indicate that the district court
would have imposed a lower sentence under advisory Sentencing
Guidelines. See id. To the contrary, the district court chose to
impose a sentence of 104 months even though it could have imposed
14
a sentence as low as 92 months under the Sentencing Guidelines
range calculated for Pratt. Accordingly, Pratt has not met his
burden of establishing that his substantial rights were affected
under the third prong of the plain error test.
III
For the foregoing reasons, Pratt’s conviction and sentence are
AFFIRMED.
15