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United States v. Pirovolos

decided: April 6, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LOUIS PIROVOLOS, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 CR 617--Charles P. Kocoras, Judge.

Cummings, Wood, Jr., and Coffey, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge.

On November 19, 1986, a jury found defendant-appellant Louis Pirovolos guilty of violating the Armed Career Criminal Act of 1984, 18 App. U.S.C. § 1202 (1982 and Supp. III 1985) ("the Act"). On January 14, 1987, the presiding judge sentenced Pirovolos to twenty years in prison, with a mandatory term of fifteen years without probation or parole. The Act provides that

(a) Any person who --

(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony,

and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court referred to in paragraph (1) of this subsection for robbery or burglary, or both, 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 this subsection, and such person shall not be eligible for parole with respect to the sentence imposed under this subsection.

18 App. U.S.C. § 1202(a) (emphasis added).*fn1 Pirovolos challenges his conviction on two primary grounds. First, Pirovolos argues that the trial judge erred in allowing the prosecution to present proof of Pirovolos's prior convictions and of two other incidents linking Pirovolos with weapons. Second, Pirovolos asserts that prosecutorial misconduct deprived him of a fair trial.*fn2 While we agree that the trial judge erred in admitting evidence of the prior convictions and that one of the prosecutors at times conceivably may have overstepped the bounds of proper advocacy, we find that those imperfections did not compromise the fairness of the trial. We affirm Pirovolos's conviction.

FACTS

I. The Repossession

On Sunday evening, July 21, 1985, three men drove to Steger, Illinois, to repossess a Chevrolet Cavalier owned by Pirovolos. Two of the men, George Katz and Wes Bauer, worked for Equitable Services, a Chicago corporation that had been authorized by the lienholder bank to repossess the car. Katz had been convicted of several felonies, including burglary, possession of burglary tools, and theft. Bauer had been convicted of burglary and possession of marijuana. The third man was Michael Morris, an acquaintance of Bauer. Morris did not work for Equitable Services.

At about 10:30 p.m., the men arrived in Steger and stopped at the village police department. There they notified the police that they were to repossess the automobile and they showed the police the authorization form issued by Equitable Services. Officer Wayne Siegrist then decided that he and another Steger police officer, Mark Paoella, would accompany the repossessors to prevent any breach of the peace. At about 11:00 p.m., Katz, Bauer, and Morris arrived at Pirovolos's restaurant, Louie's Little Derby Restaurant. The Cavalier was parked in front of the restaurant. Officers Siegrist and Paoella arrived soon thereafter and parked nearby in their marked squad car. The parties dispute the events that followed.

At trial, Pirovolos maintained that he possessed a gun only momentarily for self-defense. He testified to the following. He had closed the restaurant for the evening and was at the cash register counting the weekend receipts when Connie Schoonover, a waitress, called his attention to three men surrounding his car in the restaurant's parking lot. He ran outside to confront the men. The repossessors did not identify themselves as such, but instead attacked Pirovolos. One of them struck him on the back of the head with a metal object. Pirovolos struggled to escape his attackers and looked up in time to see that one of the repossessors had started the Cavalier and was driving toward him as if trying to run him over. Pirovolos then ran to the restaurant's front door, yelling for Chris Kaperonis, the cook, to get him a baseball bat he kept in the restaurant. He was met in the doorway by Kaperonis, who handed him a revolver. Because Kaperonis was blocking the doorway, Pirovolos could not retreat inside the restaurant. Instead, he turned and fired three, four, or five shots at the car as it veered past him. Pirovolos testified that he intentionally fired low, at the car's tires, so that he would not hurt anyone but would make apprehension of the "thieves" easier for the police. Finally, Pirovolos claimed that the revolver belonged to the cook, that he had never seen the gun before, and that he "never kept a gun in the Little Derby Restaurant."

Prosecution witnesses painted a very different picture. Bauer testified that Pirovolos emerged from the restaurant while Katz sat in the Cavalier attempting to start it and Bauer and Morris stood nearby. Bauer testified that he told Pirovolos that he, Katz, and Morris were repossessing the car, showed Pirovolos the repossession order, and invited Pirovolos to check the repossessors' authority with the police. Bauer, Katz, Morris, and Officers Siegrist and Paoella testified that no one assaulted Pirovolos or attempted to drive the Cavalier toward him. Each of those witnesses further testified that, after confronting the repossessors, Pirovolos walked back to the front door of the restaurant. Bauer testified that Pirovolos met another man in the doorway, said something to the other man in a foreign language, then turned back toward the parking lot, now holding a gun. Katz testified similarly. Bauer, Katz, and Morris testified that Pirovolos next returned to the parking lot, pistol in hand, and fired five or six shots while running after the Cavalier as Katz drove it out of the parking lot and down the street.

Officers Siegrist and Paoella testified that they were preparing to return to the police station when they heard several shots. They looked up in time to see Pirovolos running after the Cavalier, firing as he ran. They then drew their guns, ran after Pirovolos, and arrested him. When the officers reached Pirovolos, they found a.32 caliber revolver in his pocket with all six chambers empty. Subsequent investigation revealed three bullet marks in the passenger door of the Cavalier, two on the wall of a children's day care center across the street from the restaurant, and one in a gas station sign, also across the street from the restaurant. Finally, Paoella testified that after Pirovolos's arrest, while Pirovolos was in his cell at the police station, he heard Pirovolos complain, "What kind of country is this when you can't even kill someone for stealing your car?"

Kaperonis also testified for the prosecution. Like Bauer, Katz, Morris, and the police officers, he disagreed with Pirovolos's account of the incident. Kaperonis testified that he saw the three men near the Cavalier and told Pirovolos that they were there. Pirovolos then ran outside. Kaperonis testified that Pirovolos talked with the men and tried to open the Cavalier's driver's side door as one of the repossessors sat inside trying to start the car. The other two repossessors pushed or pulled Pirovolos away from the car, but they did not otherwise assault Pirovolos and they carried no weapons. Further, no one tried to run over Pirovolos. Pirovolos then reentered the restaurant, took a pistol from a cabinet beneath the cash register, and ran back outside. Kaperonis followed Pirovolos outside and saw him shoot at the Cavalier as it turned out of the restaurant parking lot and headed down the street.*fn3

II. Proceedings Before the Trial Court

On August 15, 1986, a grand jury indicted Pirovolos, charging him with violating 18 App. U.S.C. § 1202(a)(1). The indictment specifically alleged that Pirovolos previously had been convicted of three armed robberies and it listed the three prior convictions and identified them by date, court, title of offense, and case number. Before trial, Pirovolos moved to strike the indictment's reference to the prior convictions and offered instead to stipulate simply that he had been convicted of a felony. Pirovolos also moved to limit the prosecution's proof at trial accordingly. He based the motion and stipulation on his understanding that section 1202 required the prosecution to prove only a single prior felony conviction to convict a defendant, with any further convictions presented to the judge after trial for sentencing. Thus, Pirovolos urged that any further mention at trial of the prior convictions would be both unnecessary and prejudicial.

The government accepted the defendant's view of the law, agreed to the stipulation, and prepared an amended indictment that stated only that Pirovolos had previously been convicted of a felony. The government also conceded that the convictions were unavailable for impeachment because they were more than ten years old. See Fed.R.Evid. 609(b). Additionally, the parties stipulated that ownership of the gun that Pirovolos used could ...


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