United States v. Pratt , 322 F. App'x 132 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-16-2009
USA v. Pratt
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4401
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 07-4401
UNITED STATES OF AMERICA
v.
TYRONE PRATT a/k/a/ TYRONE DANA BOOKER
Tyrone D. Pratt,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 1-06-cr-00077)
District Judge: Honorable Gustave Diamond
Submitted Under Third Circuit LAR 34.1(a)
January 13, 2009
Before: SLOVITER and BARRY, Circuit Judges, and POLLAK,* District Judge
(Filed: April 16, 2009)
_____
OPINION
*
Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern District
of Pennsylvania, sitting by designation.
POLLAK, District Judge.
Appellant Tyrone Pratt, following a jury trial, was convicted of illegally possessing
a firearm. Pratt challenges the sufficiency of the evidence underlying that conviction and
the admission of evidence at the trial that the firearm in question had been stolen. He also
challenges the sentence imposed by the district court. We reject Pratt’s arguments and
affirm the District Court’s judgment.
I.
The jury heard evidence that on July 30, 2005, at around 1:30 a.m., Pittsburgh
police officers Philip Mercurio and Robert Kavals were patrolling a high-crime area in
the Homewood neighborhood of Pittsburgh in an unmarked police car.1 Pratt was driving
the car directly in front of the officers’ car, and they observed him make a left turn at a
red light without stopping. Officer Mercurio, who was driving, continued behind Pratt
and turned on the car’s warning lights and siren, signaling for Pratt to pull over. Pratt did
not pull over, and Officer Kavals radioed for backup. Pratt turned right into a parking lot,
went across the lot, and pulled back out onto the street, at which point he went through
another red light and then stopped. Pratt got out of his car, dropping a cell phone as he
did so, fell down, picked up the phone, and fled on foot. The officers pursued Pratt
(Mercurio on foot and Kavals by car). During his flight, Pratt jumped over a fence and
1
Two people from the television show COPS accompanied the police officers with video
cameras. Before Pratt’s trial, a subpoena was issued to the producers of COPS requesting any audio
or video recordings of the event, but they reported back that because no footage had been
incorporated into any episodes of COPS, any tapes that existed had been erased.
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fell down, but he got back up and kept running until he ran into Officer Kavals, who,
having circled around by car, got out and tackled Pratt.
Pratt was handcuffed, arrested, and searched. He was found to be wearing an
empty sidekick holster. The officers returned to Pratt’s car, but no gun was there. The
police officers retraced the path of the chase and found a .45 Para-Ordnance gun lying
next to the fence Pratt had vaulted. The gun fit the holster Pratt was wearing. Because
Pratt had previously been convicted of a felony, he was charged with violating 18 U.S.C.
§ 922(g)(1), which prohibits the possession of a firearm by a prior felon.
At Pratt’s trial, the government sought to introduce evidence that the gun found by
the fence had been stolen. The District Court initially barred the introduction of this
evidence as overly prejudicial, but later permitted the government to introduce evidence
from the owner of the gun regarding its theft so long as the evidence would show that the
holster found on Pratt was at least similar to the one belonging to the gun that was stolen.
The government then presented Jeremiah Thomas, who testified that he had purchased a
.45 Para-Ordnance pistol on June 12, 2005 and reported it stolen on July 26, 2005. He did
not report the holster missing or stolen at the time, but he did testify at trial that there was
a holster with the gun when it was stolen, and the holster found on Pratt looked like the
holster that went with his stolen gun.
The defense presented one witness, Dyan Carmack, who testified that she had in
fact dropped the gun the police found. Carmack testified that she was carrying the gun
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for a man named John Bundy; he asked her to carry it when he was going to a bar with a
metal detector that would not have permitted the gun. Carmack was then on her way to
meet Bundy after he left the bar so she could return the gun. She testified that as she was
walking, she saw the police pursuing someone, so she discarded the gun because she
knew that she did not have a permit to lawfully carry it. Carmack testified that she did
not know Pratt, but did know his cousin, who told Carmack about Pratt after Carmack
told her about the discarded gun. Carmack testified that she came forward of her own
free will, did not have immunity to safeguard her from prosecution for illegal possession
of the gun, and was not subpoenaed to testify. Carmack also testified that she had
become friends with Pratt and visited him approximately thirty times at the County Jail.
The jury convicted Pratt, and the District Court later sentenced him to a period of
imprisonment of 200 months followed by a term of supervised release.
II.
On appeal, Pratt raises three issues. First, he challenges the sufficiency of the
evidence on which he was convicted. Second, he appeals the District Court’s ruling
under Fed. R. Evid. 401 and 403 permitting evidence that the gun was stolen. Third, he
challenges his sentence, arguing that the District Court failed to properly consider the
nature and circumstances of the offense.
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A.
Pratt argues that the evidence was not sufficient to sustain his conviction because
the government failed to prove that he possessed the gun found by the fence. “Our
review of the sufficiency of the evidence after a conviction is ‘highly deferential.’”
United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001). We have plenary power to
determine, after drawing all reasonable inferences in the light most favorable to the
government, whether the evidence would allow a rational jury to convict. See id. The
jury's verdict must be upheld if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180,
187 (3d Cir. 1998) (citations omitted).
In order to establish a violation of 18 U.S.C. § 922(g)(1), the government must
prove that (1) a defendant had previously been convicted of a crime punishable by
imprisonment for a term exceeding one year; (2) a defendant knowingly possessed a
firearm; and (3) that the firearm had passed in interstate commerce. See United States v.
Dodd, 225 F.3d 340, 344 (3d Cir. 2000). At Pratt’s trial, he stipulated to the first and
third elements. He argues that there was not substantial evidence supporting the jury’s
conclusion that he possessed the gun, because the only piece of evidence connecting him
to the gun was the testimony that the gun was found in the same location where he fell
while jumping the fence. However, the government was entitled to prove the second
element by proving constructive possession, which “requires an individual to have the
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power and intent to exercise both dominion and control over the object he or she is
charged with possessing.” United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999).
Viewing the evidence in the light most favorable to the government, United States
v. Wise, 515 F.3d 207, 214 (3d Cir. 2008), the jury could have reasonably concluded that
appellant exercised “dominion and control” over the gun. The gun was found on the
ground next to the location where Pratt had fallen down while trying to jump over a
fence. When he was arrested, Pratt was wearing an empty holster, and the gun that was
found fit inside that holster. Appellant points to the testimony of Dyan Carmack
regarding the presence of the gun in that location. However, it was solely within the
province of the jury to evaluate Carmack’s testimony and decide whether to believe her
explanation. Dent, 149 F.3d at 187. The jury evidently rejected this testimony, and we do
not pass on the jury’s credibility determinations. Based on the evidence presented, the
jury could have reasonably believed the government’s theory that Pratt had the gun on his
person when he began his flight from the police and dropped the gun in that location
when he fell. The evidence is sufficient to sustain Pratt’s conviction.
B.
Pratt’s second argument is that the admission of evidence that the gun and the
holster were stolen violated Federal Rules of Evidence 401 and 403, because the evidence
was irrelevant and unduly prejudicial.2
2
Pratt contends that this purported error was of particular consequence because the jury
received no limiting instruction. However, the record reveals that no limiting instruction on this
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Evidence is relevant where it “make[s] the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence,” but relevant evidence may still be excluded if “its
probative value is substantially outweighed by the danger of unfair prejudice.” Fed. R.
Evid. 401, 403.
The transcript provides the District Court’s rationale for the admission of the
testimony that the gun and holster were stolen:
“. . . it becomes relevant because the holster was found on the defendant
and it would be an unusual coincidence if the two of them were not part of
the same package, and the witness now would be testifying that the holster
came from his collection and, therefore, the defendant, it’s more likely than
not that the defendant did, in fact, possess the weapon which came with the
holster. I’ll permit that. But absent that kind of a tie-in, simply the fact that
the weapon that the defendant allegedly possessed was stolen, I won’t
permit that because the relevance is minimal and its potential for a prejudice
is disproportionately high. . . .”
App’x at 166-67. Jeremiah Thomas then testified that the holster found Pratt was “the
same one, pretty much the same one” that had been stolen from him. App’x at 178.
We review this ruling for an abuse of discretion and conclude that no such abuse
occurred here. United States v. Eufrasio, 935 F.2d 553, 571 (3d Cir. 1991). The fact that
a witness could identify the empty holster found on Pratt as being a holster that was
compatible with the gun found on the ground made it more probable that Pratt possessed
the gun, and therefore the evidence that the gun and holster had been stolen together was
issue was requested.
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relevant. This evidence may indeed have been damaging to Pratt, because the jury may
have connected the theft with Pratt and conflated the crime of theft with the crime with
which Pratt was charged. However, it was not an abuse of discretion to conclude that the
evidence was not unduly prejudicial; the District Court’s reasoning regarding the
additional relevance created by tying the stolen gun to the identification of the holster was
neither arbitrary nor irrational. The District Court “carefully examined the evidence for
potential prejudice and balanced this against its probative value.” United States v. Ali,
493 F.3d 387, 391 (3d Cir. 2007); see also Eufrasio, 935 F.2d at 573 (encouraging district
courts to provide express reasoning when conducting a Rule 403 balancing analysis).
C.
Finally, Pratt challenges his sentence, arguing that the District Court committed
procedural error. The District Court sentenced Pratt to 200 months, below the advisory
guideline range of 252-293 months but above the mandatory minimum of 180 months.
Pratt argues that the District Court committed error by not considering Pratt’s request for
a variance under § 3553(a) down to the mandatory minimum sentence.
Pratt argues that the District Court neglected to follow Gall v. United States, 128
S. Ct. 586 (2007), by failing to consider his arguments in support of his request for a
variance, which focused on the nature of the offense, particularly that the gun was not
found on his person and that he did not use or brandish the gun.
The District Court concluded that even the lower end of the guidelines range
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would be “excessive” in this case but also that the mandatory minimum of 180 months
did “not adequately reflect the fact that [Pratt] engaged in activities that made him under
our law an armed career criminal.” App’x 300. The District Court found that it would be
proper to impose a sentence somewhere between the mandatory minimum and the
guidelines’ lower end. The District Court considered Pratt’s arguments regarding the §
3553(a) factors and commented on those factors in imposing sentence, including the
factor requiring consideration of the nature of the offense. Alhough Pratt’s counsel was
correct in pointing out that Pratt did not use or brandish the gun, this argument was made
in the context of counsel’s argument that the guidelines range was excessive, an argument
with which the District Court agreed. Pratt’s arguments on this appeal regarding the
nature of the offense are premised on a contention rejected by the jury, namely that Pratt
did not possess the gun. The District Court’s sentence was without procedural error.
III.
For the foregoing reasons, the judgment of the district court will be affirmed.
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