*1 124 holder, the second plaintiff. defends against an unworthy one.”); Mat-
See, e.g.,
Corp.,
Lotus Dev.
Mag must have known early on that its
infringement claim tenuous, was yet
managed to prolong the litigation by ob-
scuring the clarity of the underlying
facts—a strategy that undoubtedly ac- counts for the district imperfect court’s UNITED America, STATES of recollection the case. Even Mag if Appellee, by good motivated faith belief that Style was an infringer, pursuit its of these de- Gary PRATT, C. Defendant, Appellant. fendants became indefensible once it No. learned 05-2624. Style obtained the design from Gregerman. In these circumstances, United States Court of Appeals, we think the district court’s refusal First Circuit. award fees fairly be deemed abuse Heard Jan. 2007. of discretion. See InvesSys, F.3d (“[I]n section Congress Aug. 8, Decided aimed to provide potential incentive to the winner
who asserts a successful copyright claim or
23. Our conclusion kee, that fees are Inc., warranted note, Margolis. Robert based litigated against case Style however, against claims Cherokee Target makes it unnecessary to consider the and Margolis appear even patently more separate arguments raised on behalf Chero- unreasonable. *2 Mizner, Federal Assistant H.
Judith Defender, appellant. for Public P. Ollila, whom Thomas L. Terry Attorney, and Colantuono, Unit- Assistant Maldonado-Quiñones, Aixa brief, ap- Attorney, were ed States pellee. LIPEZ, BOUDIN, Judge, Chief
Before SHADUR,* Senior Judge, and Circuit Judge. District Judge. LIPEZ, Circuit his conviction appeals Gary Pratt handgun aof possession being felon in contests 922(g)(1) 18 U.S.C. under under the imposed sentence an enhanced (“ACCA”), 18 Act Criminal Career Armed his con- 924(e). argues He by sufficient supported viction was failed dence because toas into evidence introduce also con- He his offense. elements two en- for an qualify did he tends because the ACCA hanced sentence violent of three had not * Illinois, designation. sitting District the Northern Of
felonies. We affirm the conviction trial, At the prosecution told the jury in sentence. its opening statement that gun in ques- tion had traveled interstate commerce
I. *3 and that Pratt previously had been con- We state the facts “as the victed of a punishable could crime by imprison- have them, found drawing all ment for more inferences than year. one However, the light most consistent the stipulation with the jury providing the evidentiary verdict.” United Milkiewicz, v. States support for this statement pre- was never (1st F.3d Cir.2006). sented to the Immediately jury as prior evidence following his release from prison, close Pratt and the prosecution did lived on and off with Melody Isham-Pi- introduce other evidence that gun lotte, purchased who a .357 caliber Glock traveled in interstate commerce or pistol semiautomatic at his that Pratt was a instruction and convicted felon. filled out paperwork as purchaser. After the close of evidence, the court kept then gun with him and used issued its instructions to the jury. It first it on several occasions to fire at signs and provided general instruction on stipula- beer cans. At point, one after crashing tions: Isham-Pilotte’s car and leaving the scene During the trial, course accident, you were told called to tell her that he government had left and gun defendant the trunk of the car. agreed or stipulated to Isham-Pilotte certain was able to facts. retrieve the This simply gun. means that both sides ac- cept those facts to be true. Because Eventually, Pratt was arrested for fail- there is no disagreement regarding ure to appear in court on an unrelated facts, those there was no need for either matter, and, after an investigation uncov- side to introduce evidence relating to ered the events above, described he was them. You may accept as true those charged being a felon in possession of facts to which the government and the a firearm. His indictment stated that the stipulated. have government intended to seek a sentencing enhancement under ACCA, With respect pro- which to the charged offense, the vides a fifteen-year mandatory court minimum instructed the jury that, under term for a defendant with prior three 922(g)(1), vio- government must lent felonies or serious drug prove (1) offenses. that: the defendant had been (which a felony it defined trial, Before a stipula- filed punishable “crime by imprisonment tion agreeing that the handgun had been term exceeding year”); (2) one the defen- transported in interstate or foreign com- possessed dant firearm; the fire- merce. The stipulation also identified five arm had traveled previous interstate commerce. crimes for which Pratt had been It then explained that Pratt convicted. With respect to crimes, those the stipulation stated that “the jury should stipulated has agreed or that ... he was instructed the Court that ‘the defen- convicted of an punishable offense agrees dant he was previously convicted of imprisonment for a term exceeding one a crime punishable by imprisonment for a year. Because there is no disagreement term exceeding year’ one without further fact, there was no need elaboration or explanation.” See for the government infra any introduce Section II.A. dence relating to it. As I mentioned element conviction ment the facts true accept as earlier, you evidence, he now chal into introduced defen- which the sufficiency of lenges agreed. stipulated have dant those elements. his conviction support that Pratt stated also court challenge to unpreserved review semi-auto- the Glock has only plain the evidence sufficiency of traveled case in this issue pistol matic Peña-Lora, 225 error, States at some boundary line state across reverse Cir.2000), and will 17, 26 F.3d Because manufacture. after its time in a result would conviction if the only fact, toas disagree do injustice,” gross “clear *4 to government for the need nowas there (1st 664, Cir. Bello-Perez, 668 F.2d 977 v. to relating any evidence introduce 1992). the that fact true the accept as you pre- by first erred the court Technically, traveled pistol semi-automatic Glock stipula- the of subject matter the senting commerce. interstate affected or instructions, jury its jury in the tion to these instructions. to object not did Pratt Ordinarily, of evidence. close after the verdict. guilty a returned jury The be- contrary agreement ais there unless ob- Pratt hearing, sentencing During his should courts district parties, the tween en- an qualify he did that jected content or stipulation, a that ensure because ACCA sentence hanced jurors prior to the thereof, presented is three include did not offenses his presentation This evidence. of the close his rejected court The felonies. violent forms: various may take statutory mini- imposed the objections evidence, the into entered could itself be ap- This years. of fifteen sentence mum into read the could court ensued. peal one that could dence, or the publish will of them
II.
include
often
will
presentation
The
jury.
stipu-
that
court
explanation
Elements
Essential
Stipulation
A.
government
that the
means
lation
18
violation
establish
To
particular
of a
truth
accept
must
government
922(g)(1),
no
hence,
there
fact, and,
proposition
beyond
reasonable
elements
three
prove
stipula-
from the
apart
need for
a fire
(1)
possessed
the defendant
doubt:
itself.
tion
in inter
had traveled
firearm
arm;
set-
“no
suggests
concurrence
The
(3) the defendant
commerce; and
state
be
is to
to how
exists
tled rule
his
felony prior
aof
doWe
stipulation.”1
aof
informed
Although
the firearm.
possession
suggested
fact, we have
disagree.
his
at trial
claim
did
be
could
which
ways in
variety
ele-
commerce
interstate
relating
Melina, 101
1998);
v.
States
United
(11th Cir.
no
there is
states
also
concurrence
Cir.1996);
(8th
United
567, 572-73
handling of
F.3d
relating to the
problem
recurring
(4th
672,
Cir.
Muse,
677-81
F.3d
However,
83
disputes
v.
States
stipulations.
440,
Branch, 46 F.3d
1996);
arisen
v.
have
States
stipulations
United
handling of
James,
See,
Cir.1995);
v.
States
appellate
(5th
courts.
United
frequency
441-42
some
236,
Harrison,
1993);
(9th
648,
United
v.
Cir.
e.g.,
648-52
States
F.2d
987
(4th
v.
States
Cir.1999);
(D.C.Cir.2000); United
Clark,
405-06
F.2d
238-43
Meade,
v.
States
222-24
F.3d
1993).
Cir.
Hardin,
814-17
F.3d
informed of the content of a stipulation.
exhibits that I allowed
evidence;
into
However,
view,
in our
there is a settled
stipulations that
the lawyers agreed to;
rule that the content
a stipulation
must
and the facts that I have judicially no-
published
to the jury prior to the close
ticed.”); Pattern
Jury
Criminal
Instruc-
of evidence. That settled rule is confirmed
tions
Tenth Circuit
(2005),
1.01
by a review of
pattern
jury instruc-
available at http: Hwww.cklO.uscourts.gov/
tions from the circuits. For example, the
(last
downloads/pjilO-cir-crim.pdf
visited
Pattern
Jury
Criminal
Instructions for the
29, 2007)(“Evidenee
July
presented
will be
District Courts of the First
state,
Circuit
you
which
will have to determine the
with respect
stipulations:
facts. The evidence will consist of the
The evidence in this case includes facts
testimony of
witnesses,
documents and
to which
lawyers
agreed
have
other things received into the record as
stipulated. A stipulation
simply
means
exhibits, and any facts about which the
and the defendant
lawyers agree or to
they
which
stipulate.”);
accept the truth
particular
of a
proposi-
Pattern Criminal Jury Instructions for
tion or fact. Since there is no disagree-
*5
§
Seventh Circuit
(1998),
1.02
avail-
ment,
there is no need for evidence
able at http://www.ca7.uscourts.gov/pjury.
apart
stipulation.
You must
from
(last
pdf
July 29, 2007) (“The
visited
accept the stipulation as fact to
given
be
dence consists of the
of
testimony
the wit-
weight you
whatever
choose.
nesses, the exhibits
evidence,
entered in
Pattern Criminal Jury Instructions for
and stipulations.”).
Circuit,
The Fourth
in
the District Courts
the First Circuit
Muse,
States v.
83 F.3d
§
(1998),
2.01
available
http://www.med.
at
(4th Cir.1996), reinforced the assumption
uscourts.gov/practices/crpji.97nov.pdf Oast of these instructions with its statement
visited July
2007)(emphasis added).2
that “a defendant
requirement
waives the
Other circuits similarly acknowledge the
that
government
produce evidence
evidentiary nature of stipulations. See
(other than the stipulation itself) to estab-
e.g., Pattern
Jury
Criminal
Instructions
lish the
facts
to beyond a rea-
the Sixth
§
Circuit
1.04
http://
for
sonable
added.)3
doubt.” (Emphasis
www.ca6.uscourts.gov/intemet/crim—
(last
jury insts/pdf/crmpattjur—full.pdf
The handling of Pratt’s stipulation did
—
July 29, 2007)(“The
visited
in
evidence
comply
with practice
standard
sur-
case includes only what the witnesses
rounding
said
stipulations that we have de-
while they were testifying
oath;
above,4
scribed
and the language of the
2.
noted,
As we have previously
the Pattern
4.To the extent that
some
the other circuits
Jury
Criminal
that,
Instructions are not mandatory
have
held
stipulating, a defendant
in the First Circuit. See
right
waives
States v.
his
government
Sa
have the
enter
betta,
Cir.2004).
stipulation
content of
n.
into
they
are
prevalent
odds with the
under-
standing of how stipulation
should be
Muse
han-
entirely
point
because the
Hardin,
dled. See
(“Hardin
Pratt’s conviction is panel Merely to read as to rule exists that no settled confirm So ordered. stipula- of a to be informed jury how is governing And, in the absence tion. concurring in BOUDIN, Judge, Chief action, what prejudicial rule or some judgment. “er- assuredly not did was judge district prescribed ritual has been single No any any indication of is there Nor ror.” has a factual issue jury that advising the practice” “standard —whatever In some parties. been judge departed that the district mean —or introduced; is a written cases parties intended. what the informed; and merely others, is Surely if timing. as to exists fixed rule no presented were recurring problem If a pertinent are content might stipulations, handling as to is a matter conveyed, this information though there was say acceptable that — informed discre- left to the that should be future ought matter no error —the judge. district tion of the But no way. in a different to be handled more Manufacturing exists. problem such agreed in this case The al- “law,” there is of which unnecessary felony conviction merely new creates shortage, ready no in interstate com- moved gun had are litigants who judges trial traps for filed a signed and They merce. pres- jobs done get their trying to specific felonies. listing effect to this own. exceeding our far sures told argument opening stipulated, to what had felo- specific identifying the three without helpful to defendant.
nies—an omission instructions, judge repeated jury.
substance *8 object not either did
The defendant han- the court’s statement opening stage instruction matter
dling of the (2000), ar- 2348, but L.Ed.2d 435 147 sentencing was in asserts his 7. Pratt also Supreme Court majority gues Sixth Amendments the Fifth and violation of holding. charge, As did he its did to overrule poised indictment now because the admit, however, his rejected find that and a did we have acknowledges, See, predicate of- qualified as prior convictions occasions. argument on numerous this Supreme 39, Court the ACCA. fenses under McKenney, 450 F.3d v. e.g., States United argument rejected Moore, in Almendarez-Torres Cir.2006); v. (1st 45-46 224, 239, States, 118 S.Ct. 523 U.S. Thus, Cir.2002). we (1998), Apprendi L.Ed.2d here. consideration give it further need not 489-90, 120 S.Ct. Jersey, U.S. v. New