-
USCA1 Opinion
United States Court of Appeals For the First Circuit
____________________
No. 95-1171
UNITED STATES OF AMERICA,
Appellee,
v.
JAMIE ROSE,
Defendant, Appellant.
____________________
No. 95-1752
UNITED STATES OF AMERICA,
Appellee,
v.
NORMAN VERRILL,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge] ___________________
____________________
Before
Cyr, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________ and Lynch, Circuit Judge. _____________
____________________
Mark F. Itzkowitz for appellant Jamie Rose. _________________
Thornton E. Lallier, with whom Lallier & Anderson was on brief, ___________________
for appellant Norman Verrill.
Kenneth P. Madden, Assistant U.S. Attorney, with whom Sheldon __________________ _______
Whitehouse, U.S. Attorney, and Margaret E. Curran, Assistant U.S. __________ ___________________
Attorney, were on brief, for appellee.
____________________
January 30, 1997
____________________
LYNCH, Circuit Judge. These two appeals arise out LYNCH, Circuit Judge. _____________
of the armed robbery of the Dexter Credit Union in Central
Falls, Rhode Island on April 6, 1994. Jamie Rose was
convicted of conspiracy to rob a federally insured credit
union in violation of 18 U.S.C. 371, 2113(a), and of being
a felon in possession of a firearm in violation of
922(g)(1). Norman Verrill was convicted of the same two
offenses and also of armed robbery and robbery of a federally
insured credit union. 18 U.S.C. 2113(a), (d). Rose was
sentenced to 60 months' imprisonment on the conspiracy count
and to 120 months' imprisonment for being a felon in
possession; the sentences are consecutive. Verrill was
sentenced as a career offender and an armed career criminal
to a term of 264 months.
On appeal, Rose raises a plethora of issues, two of
which are weightier than the rest and require us to address
issues previously unresolved by this court. The first
concerns the jury charge that may properly be given based on
evidence of a defendant's possession of recently stolen
property. The second is whether the trial court abused its
discretion by admitting a potentially inflammatory photograph
into evidence, and if so, whether this court has discretion
to determine whether the error was harmless where the
government has not so argued. Verrill appeals exclusively
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from the determinations made as to his sentence. We affirm
the convictions and the sentences.
I.
During the late morning of April 6, 1994, three men
wearing masks entered the Dexter Credit Union in Central
Falls, Rhode Island. The credit union was insured by the
National Credit Union Administration. One robber brandished
a semi-automatic pistol while the two others took money from
the teller stations. A fourth masked man waited outside in a
black pickup truck, which the robbers used as a get-away
vehicle. Credit union employees determined that $10,584 had
been stolen.1
Police arrived at the scene a few minutes after the
robbers had fled. They found the get-away truck abandoned,
with its engine running, a few blocks from the credit union.
The ignition had been "popped," and the police later learned
that the truck had been stolen two days before.
The authorities thought they knew where to find the
culprits. Both the FBI and the Providence Police Department
had been investigating Verrill, Rose, David Vial and
Christopher Thibodeau in connection with a series of bank
robberies. A confidential informant had provided information
that the four men were involved in robbing banks. A team of
____________________
1. The loss was initially thought to be $10,913.53, but that
figure was later adjusted downward.
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officers, consisting of FBI agents and Providence police
officers who were part of a bank robbery task force, went to
Vial's home in North Providence and waited outside. A few
minutes later, a champagne-colored Nissan Pathfinder carrying
four men pulled into the building parking lot. Task force
members had seen Rose and Thibodeau in the Pathfinder earlier
that day and knew that the vehicle had been stolen some
months earlier and that the license plates had been stolen
eleven days before the bank hold-up.
The task force members approached the Pathfinder
and identified themselves. Rose, who was driving, pulled
away at high speed, nearly hitting two officers in the
process. The officers began shooting. Vial managed to
escape temporarily: he was found about forty-five minutes
later hiding in a bush. The officers ordered Rose, Verrill
and Thibodeau out of the vehicle. Thibodeau, who had been
wounded, was lying on the front seat; when the police removed
him from the car, they found that he was holding a Glock
semi-automatic pistol in his left hand and had a Smith &
Wesson automatic pistol in the waistband of his pants. Both
were loaded with Winchester 9 millimeter Black Talon and
Federal Cartridge hardball 9 millimeter round ammunition.
The officers found two small gym bags, containing over nine
thousand dollars and makeshift masks, in the back seat of the
Pathfinder. Some of the money was banded by paper money
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straps bearing the markings of the Dexter Credit Union. The
four men were arrested.
Rose had suffered a scalp laceration and was
brought to Rhode Island Hospital. The physician's assistant
who treated him found a screwdriver, a pager and an
ammunition clip from a Glock semi-automatic pistol in his
trouser pockets. These items had not been found in an
earlier pat-down of Rose.
Later that night, an FBI agent executed a search
warrant at Rose's home in Providence. There, the agent found
a box of Federal Cartridge ammunition designed to hold 50
rounds of ammunition but only containing 39 rounds, as well
as a leather pistol case. The agent also seized a photograph
album containing pictures of Rose and others. Among the
photos were five of Rose holding what appeared to be a Glock
semi-automatic pistol. One of the photos showed Rose, finger
on the trigger, pointing the pistol at the head of another
young man.
Defendants were charged with conspiracy to rob the
Dexter Credit Union; armed robbery of the credit union;
robbery of the credit union; using and carrying a firearm
during a crime of violence; and possession of a firearm by
previously convicted felons. Vial and Thibodeau, two of the
men in the car, pleaded guilty to some of the counts and the
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rest of the charges against them were dismissed. Verrill and
Rose proceeded to trial.
Rose moved to sever his trial from Verrill's and to
sever the felon-in-possession charge from the other charges.
The motions were denied after a hearing, as was a motion for
reconsideration. The district court ruled that, because
there was no evidence of what Verrill's defense would be,
there was no basis for concluding that Rose and Verrill had
antagonistic defenses.
Vial, a government witness, testified that he,
Verrill and Thibodeau entered the credit union while Rose,
who had the Glock, remained outside in the truck. Vial said
that Thibodeau had waited at the door of the credit union
holding the Smith & Wesson while he and Verrill took the
money. He also testified that all four men fled in the truck
but then switched to a second stolen vehicle which he and
Rose had left near the credit union earlier that day, and
that soon afterwards, they moved to the Pathfinder.
Rose's consecutive 60 and 120 month sentences were
based on the guideline for robbery, U.S.S.G. 2B3.1, as
dictated by the conspiracy guideline, U.S.S.G. 2X1.1. The
conspiracy guideline requires that the base offense level for
a conspiracy conviction be that of the substantive offense
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plus adjustments for any intended conduct.2 See U.S.S.G. ___
2X1.1(a).
Verrill was sentenced both as an armed career
criminal pursuant to 18 U.S.C. 924(e) and U.S.S.G. 4B1.4,
and as a career offender pursuant to U.S.S.G. 4B1.1. As
either an armed career criminal or as a career offender,
Verrill's offense level was 34 and his criminal history
category VI, which translates into a guidelines range of 262
to 327 months. He was sentenced to 264 months. This appeal
ensued.
II.
Rose argues that his conviction should be reversed
for several reasons: that the trial court abused its
discretion in denying the motions to sever his trial from
Verrill's and to sever the felon-in-possession count; that
the trial court made erroneous and prejudicial evidentiary
rulings; and that the charge to the jury was at times
____________________
2. After determining the specific offense characteristics,
the court calculated the offense level for the conspiracy
count as 31 and the offense level for the felon-in-possession
count as 27. The district court appropriately used the
higher offense level of 31, see U.S.S.G. 3D1.3, and ___
determined that Rose had a criminal history category of V.
The guideline range was 168 to 210 months. With a statutory
maximum of 5 years for the conspiracy conviction and 10 years
for the felon-in-possession conviction, the district judge
determined the range to be 168 to 180 months. He effectively
sentenced Rose to the statutory maximum.
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erroneous and at times incomplete. We deal first with his
more serious arguments.
Jury Instruction on Recently Stolen Property ____________________________________________
Rose questions several aspects of the court's
charge to the jury. The most significant challenge concerns
the instruction regarding the inferences that the jury may
permissibly draw from the defendant's possession of recently
stolen items. In the context of discussing the stolen get-
away vehicles, the court instructed the jury that the
possession of recently stolen property, if not satisfactorily
explained, could support an inference not only that the
person in possession knew that the property was stolen, but
also that he participated in the theft.3
This raises a question of first impression in this
circuit.4 The challenged instruction is reviewed for abuse
of discretion to determine whether the charge, taken as a
whole, "'fairly and adequately submits the issues in the case
to the jury.'" United States v. Picciandra, 788 F.2d 39, 46 _____________ __________
____________________
3. Rose also argues that the phrase "if not satisfactorily
explained" impermissibly penalized him for failing to take
the stand. This latter argument has been rejected by the
Supreme Court. Barnes v. United States, 412 U.S. 837, 846-47 ______ _____________
(1973).
4. It has long been the law that the jury may infer from an
individual's possession of recently stolen items that the
individual knew the property had been stolen. See generally _____________
United States v. Farnkoff, 535 F.2d 661, 666-67 (1st Cir. _____________ ________
1976).
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(1st Cir. 1986) (quoting United States v. Fishbach & Moore, _____________ __________________
Inc., 750 F.2d 1183, 1195 (3d Cir. 1984)). ____
We join the other circuit courts of appeals that
have concluded that possession of recently stolen property
may support an inference of participation in the theft of
that property. United States v. Clark, 45 F.3d 1247, 1250 _____________ _____
(8th Cir. 1995); United States v. Ferro, 709 F.2d 294, 296-97 _____________ _____
(5th Cir. 1983); United States v. DiGeronimo, 598 F.2d 746, _____________ __________
754-55 (2d Cir. 1979); United States v. Long, 538 F.2d 580, _____________ ____
580-81 (4th Cir. 1976) (per curiam); United States v. ______________
Plemons, 455 F.2d 243, 246 (10th Cir. 1972). These cases _______
rely in large part on the widespread acceptance of the
principle and on the common sense reasoning that supports the
inference. See, e.g., Long, 538 F.2d at 581. ___ ____ ____
We emphasize the limits on instructions as to this
inference. First, the instruction may not be given in every
case where a defendant was in possession of recently stolen
property. As the Second Circuit noted, in certain situations
the inference "would verge on the irrational" in light of the
other evidence in the case. United States v. Tavoularis, 515 _____________ __________
F.2d 1070, 1074-75 (2d Cir. 1975); see also DiGeronimo, 598 ___ ____ __________
F.2d at 754. For example, in the absence of additional
evidence tending to support the inference, it may not be
appropriate to give the instruction. The court must always
act as a check, ensuring "that the evidence warrants
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permitting the jury to draw [the] inference." Clark, 45 F.3d _____
at 1250.
Second, the instruction involves a permissive
inference rather than a presumption. The decision about
whether the defendant's unexplained possession of recently
stolen property supports the conclusion that the defendant
participated in the theft is made by the jury based on all of
the evidence. Ferro, 709 F.2d at 297. _____
With this in mind, we turn to Rose's claim that the
five month period between the theft of the Pathfinder and his
arrest lessens the applicability of the inference. This
claim ignores the other evidence in the case. The license
plates on the Pathfinder were stolen within eleven days of
the robbery, the black pickup truck within two days of the
robbery, and Vial's testimony linked Rose to the truck. On
these facts, the inference that Rose participated in the
theft of the get-away cars is not at all unreasonable or
unwarranted.
Evidentiary Rulings ___________________
Rose argues that the district court erred by
admitting into evidence several items found in his apartment
and that this error was not harmless. Specifically, he
asserts that the admission of photos of himself and others
with what appears to be a Glock pistol, of a leather pistol
case and a photograph showing where it was found in his
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apartment and of a box of ammunition for a 9 millimeter
pistol violated Fed. R. Evid. 403, because the prejudicial
impact of these items far outweighed their probative value.
Review of the trial court's evidentiary rulings is for abuse
of discretion. United States v. Lombard, 72 F.3d 170, 187 _____________ _______
(1st Cir. 1995).
This evidence, in general, met a threshold test of
relevance. Pistols played an important role in the charged
crimes. One of the robbers brandished a pistol inside the
credit union. Vial testified that Rose was armed with a
second pistol. Two 9 millimeter pistols were seized from
codefendant Thibodeau, and a clip of ammunition for a semi-
automatic pistol was found on Rose at the hospital. Items
linking Rose to pistols tended to corroborate Vial's
testimony that Rose was a participant in the conspiracy and
that he had possessed the Glock.
The presence of a leather case for a pistol in
Rose's home is evidence that Rose kept such a weapon there
before the crime. That the case was manufactured by Browning
rather than by Smith & Wesson or Glock goes to the weight
rather than to the relevance of the evidence. The jury,
during their deliberations, had access to the two seized
weapons and to the pistol case and therefore could have
determined whether either of the pistols fit the case.
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The relevance of the ammunition is even more
readily apparent. The ammunition was of the same type as
that found in the two guns seized when Rose and his co-
defendants were apprehended. The box was marked as holding
fifty rounds, but contained only thirty-nine rounds. The
jury reasonably could have inferred that at least some of the
missing rounds had been used to load the two pistols.
In general, the photographs showing Rose with a gun
are relevant. FBI Special Agent Kevin Eaton testified at
trial that the gun in the photographs appeared to be a Glock
firearm; Eaton stated that Glocks have "a very distinctive"
look. The photographs thus link Rose to one of the weapons
seized, providing strong corroboration for Vial's inculpatory
testimony.
The pistol case and accompanying photograph, the
ammunition, and four of the photographs showing Rose with
what appeared to be a Glock were not unduly prejudicial. One
of the photos, however, which shows Rose, finger on the
trigger, with his gun pointed at the head of another person,
is potentially quite inflammatory. Rose is correct that the
photo could lead a jury to believe that anyone who would
point a possibly loaded pistol at the head of a friend is
extremely reckless and capable of criminal acts. Moreover,
this photograph was at best cumulative of the four other
photographs linking Rose to the gun. The admission of this
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photograph into evidence constituted an abuse of discretion.
The government all but conceded as much at oral argument.
In the usual case, a non-constitutional evidentiary
error will be treated as harmless if it is highly probable
that the error did not contribute to the verdict. United ______
States v. Rodriguez Cortes, 949 F.2d 532, 543 (1st Cir. ______ _________________
1991); United States v. Benavente Gomez, 921 F.2d 378, 386 _____________ _______________
(1st Cir. 1990). In a harmless error inquiry, the government
bears the burden of persuasion with respect to showing that
the error was harmless. United States v. Olano, 507 U.S. _____________ _____
725, 734-35 (1993). By contrast, in a plain error argument,
the defendant bears the burden. Id. The government here ___
failed to argue that the court's admission of the
photograph, if error, would be harmless. Does the
government's failure to raise this issue in its brief5
preclude further review and automatically require that the
conviction be reversed and sent back for trial? We think
not. Here we review to determine whether the government met
its burden despite its failure explicitly to argue harmless
error.
We join several other circuit courts of appeals in
holding that appellate courts have the discretion on direct
appeal to overlook the government's failure to argue that the
____________________
5. At oral argument, in response to questions from the
court, the government suggested that any error must be
harmless.
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admission of the challenged evidence, if error, was harmless,
and that appellate courts may therefore consider the issue of
harmlessness sua sponte. Horsley v. Alabama, 45 F.3d 1486, _______ _______
1492 n.10 (11th Cir. 1995); United States v. Langston, 970 ______________ ________
F.2d 692, 704 n.9 (10th Cir. 1992); Lufkins v. Leapley, 965 _______ _______
F.2d 1477, 1481 (8th Cir. 1992); United States v. Pryce, 938 _____________ _____
F.2d 1343, 1348 (D.C. Cir. 1991) (opinion of Williams, J.);
United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir. ______________ ___________
1991). In Rodriguez Cortes, this court noted, but did not ________________
resolve, the question, having found the evidence admitted was
not harmless. 949 F.2d at 543.
Here, we find that the evidence admitted was
plainly harmless. The photograph was cumulative, the weight
of the additional evidence overwhelming. Under such
circumstances, "it would be a waste of judicial resources to
require a new trial where the result is likely to be the
same." Id. ___
Courts have variously grounded the authority to
engage in sua sponte harmless error review on the arguably
mandatory language of Rule 52(a), which states that any error
which does not affect substantial rights "shall be _____
disregarded," and on other related doctrines. See Pryce, 938 ___ _____
F.2d at 1351 (Randolph, J., concurring). Of obvious concern
is the cost to the public of new trials because of
carelessness on the part of the prosecutors on appeal where
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the other evidence has established guilt beyond a reasonable
doubt and there is little reason to think the error infected
the jury deliberations. Also relevant is the interest in
avoiding incentives to the government to fail to make the
proper arguments.
The Seventh Circuit decides whether to undertake
the harmless error analysis sua sponte based on a three part
test considering "[1] the length and complexity of the
record, [2] whether the harmlessness of the error or errors
found is certain or debatable, and [3] whether a reversal
will result in protracted, costly, and ultimately futile
proceedings in the district court." Giovannetti, 928 F.2d at ___________
227. While we find helpful the reasoning of the Seventh
Circuit, we do not restrict ourselves to the Giovannetti ___________
test. See Pryce, 938 F.2d at 1348 (opinion of Williams, J.) ___ _____
(agreeing with the general approach of Giovannetti but not ___________
adopting the specific factors). The exercise of discretion
involves the balancing of many elements. Among these are the
state of the record and whether the arguments that the
government does make provide assistance to the court on the
harmlessness issue.6
____________________
6. Here, many of the arguments made by the government as to
why the photograph was not prejudicial under Rule 403 also go
to the question of harmlessness. Another example of this
phenomenon is when the government marshals the evidence in
response to an argument that the verdict was against the
weight of the evidence. That evidence too would be of
assistance to the court in a harmless error analysis.
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The government's case is, of course, put at risk by
its failure to argue that admission of the evidence was
harmless. Here, it survives the risk; in other situations,
it may not. Although the district court abused its
discretion by admitting the photograph of the mock shooting,
that is not a basis for overturning the conviction.
Severance _________
Rose challenges the district court's denial of
motions to sever his trial from Verrill's and to sever the
felon-in-possession count. See Fed. R. Crim. P. 14. Review ___
is for abuse of discretion. United States v. Levy-Cordero, _____________ ____________
67 F.3d 1002, 1007 (1st Cir. 1995), cert. denied, 116 S. Ct. ____________
1558 (1996). Defendant on appeal must make a strong and
specific showing of prejudice. The prejudice shown must be
greater than that inherent in trying multiple counts and
multiple defendants together. United States v. Yefsky, 994 _____________ ______
F.2d 885, 896 (1st Cir. 1993); United States v. Walker, 706 _____________ ______
F.2d 28, 30 (1st Cir. 1983). Rose fails to meet this high
standard.
Rose argues that being tried with Verrill forced
him to abandon his intention of testifying on his own behalf.
He maintains that he did not participate in the robbery but
merely picked up Verrill, Vial and Thibodeau when they called
to ask him to do so, and that he only learned of the robbery
after the three men got into the car. He argues that if he
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had testified, Verrill would have taken the stand to
implicate him. Rose concludes that he and Verrill had
antagonistic defenses which required severance.
The Supreme Court has held that conflicting
defenses of codefendants do not necessarily require
severance, reasoning that the risk of prejudice will vary
with the facts of each case. Zafiro v. United States, 506 ______ _____________
U.S. 534, 538 (1993). This court has further refined the
analysis, holding that antagonistic defenses only require
severance if the tensions between the defenses are so great
that the finder of fact would have to believe one defendant
at the expense of the other. United States v. Smith, 46 F.3d _____________ _____
1223, 1230 (1st Cir.), cert. denied, 116 S. Ct. 176 (1995). ____________
The trial judge explained that he was denying the
motion because he did not know whether Verrill actually would
testify if Rose did, and if so what the substance of that
testimony would be. The judge offered to entertain the
motion anew during trial if Verrill did in fact testify, but
he had no basis prior to trial for concluding that the
codefendants had inconsistent defenses. Of course, the trial
judge had a "continuing duty at all stages of the trial to
grant a severance if prejudice [] appear[ed]." Schaffer v. ________
United States, 362 U.S. 511, 516 (1960). Like the trial ______________
judge in Schaffer, the trial judge here was "acutely aware of ________
the possibility of prejudice," id., and was explicit about ___
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his willingness to sever if a prejudicial situation arose
during trial.
That eventuality never occurred. Neither Rose nor
Verrill put on any evidence tending to show conflicting
defenses. Rose put on two witnesses who testified that he
had not been the driver of the black pickup truck,7 and
Verrill put on no witnesses at all. This testimony was
insufficient to establish that the codefendants had
antagonistic defenses.8 Nor were the arguments made by their
counsel necessarily contradictory. Rose's attorney
essentially argued that Rose had been nothing more than an
accessory after the fact, while Verrill's counsel argued that
the government had failed to meet its burden of proof. These
theories are not irreconcilable. Even if they were, the
level of antagonism in defenses is measured by the evidence
actually introduced at trial; argument by counsel is not
evidence. Smith, 46 F.3d at 1230. _____
Nor did the trial court abuse its discretion in
failing to sever the felon-in-possession count. Rose argues
that if that count had been severed, the jury would never
have known of his status as a convicted felon. He asserts
____________________
7. Rose also recalled one of the police officers as a
defense witness.
8. Furthermore, Rose's claim of prejudice rests on the
premise that if Rose had testified, Verrill would have taken
the stand to implicate him. This seems improbable, for it
would have required Verrill to implicate himself as well.
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that this information tainted him in the eyes of the jury and
resulted in his conviction on the conspiracy count.
The felon-in-possession charge was properly tried
with the other charges because it arose out of the same
occurrence. Any prejudice was limited because Rose
stipulated to his status as a prior convicted felon.
Consequently, the government was not permitted to put on
evidence concerning the number and nature of Rose's prior
felony convictions. Old Chief v. United States, -- S. Ct. -- _________ _____________
(1997); United States v. Tavares, 21 F.3d 1, 4 (1st Cir. _____________ _______
1994) (en banc). Finally, it is improbable that the
knowledge of Rose's status as a prior convicted felon led the
jury to convict him of the conspiracy charge in light of the
acquittal on the two bank robbery charges.
Other Jury Instructions _______________________
Rose also argues that the district court erred by
refusing to charge the jury that mere presence at the scene
of a crime was not sufficient to convict him on the
conspiracy charge. The trial court's failure to give a
requested instruction on the defendant's theory of the case
is reversible error only if the requested instruction (1) was
substantively correct; (2) was not substantially covered
elsewhere in the charge; and (3) concerned an important point
in the case so that the failure to give the instruction
seriously impaired the defendant's ability to present his
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defense. United States v. Williams, 809 F.2d 75, 86 (1st ______________ ________
Cir. 1986); United States v. Gibson, 726 F.2d 869, 874 (1st _____________ ______
Cir. 1984).
Jury instructions are viewed in the context of the
charge as a whole rather than in isolation. United States v. _____________
Nickens, 955 F.2d 112, 119 (1st Cir. 1992). Furthermore, the _______
trial court's charge need not use the exact wording requested
by the defendant so long as the instruction incorporates the
substance of the defendant's request. United States v. _____________
Campbell, 874 F.2d 838, 844 (1st Cir. 1989). Here, the court ________
instructed the jury as follows:
Evidence that the defendant was in
the company of, or associated with one or
more of the persons alleged, or proved to
have become a member of the conspiracy,
is not sufficient to prove that such
defendant was a member of the alleged
conspiracy. Mere similarity of conduct
among various persons, and the fact that
they may have associated with each other,
may have been together and discussed
common interests is not sufficient to
establish membership in a conspiracy.
In addition, as part of the instruction on aiding and
abetting, the jury was explicitly told that mere presence at
the scene of the crime, even when coupled with knowledge, was
insufficient to sustain a conviction. On these facts, the
jury charge substantially covered Rose's proposed
instruction, and there was no error.
Rose also contends that the district court's
instruction on drawing an inference of guilt from flight from
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the scene of the crime was incomplete. It is true that the
instruction did not explicitly direct the jury to consider
other possible inferences. However, the charge did indicate
that it was up to the jury to determine whether to draw an
inference of guilt from the flight. This conveys the
substance of Rose's requested charge. Williams, 809 F.2d at ________
88. Furthermore, a court need only instruct the jury on a
defense theory if there is supporting evidence in the record.
United States v. Silvestri, 790 F.2d 186, 192 (1st Cir. ______________ _________
1986). Rose's counsel suggested another possible inference
by arguing in closing that Rose's flight was understandable
given that he was surrounded by men with drawn weapons.
However, no evidence was adduced to this effect. The
challenged instruction was a correct statement of the law.
The final claim Rose makes with respect to the jury
instructions is that the district court erred by refusing to
give a "missing evidence" instruction. We review for abuse
of discretion. United States v. Welch, 15 F.3d 1202, 1214 _____________ _____
(1st Cir. 1993). One of the situations that may warrant such
an instruction is when a party with exclusive control over
relevant, noncumulative evidence fails to produce that
evidence. Cf. United States v. St. Michael's Credit Union, ___ _____________ ___________________________
880 F.2d 579, 597 (1st Cir. 1989)("missing witness"
instruction). Rose argues that the FBI's failure to examine
the ammunition clip found on his person for fingerprints
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justified the missing evidence instruction. However, this
was not a case where the government failed to provide readily
available evidence. The fingerprint evidence was never
collected. Rose's counsel was free to argue that, in the
absence of such evidence, the government had not sufficiently
linked Rose to the crime. See United States v. Martinez, 922 ___ _____________ ________
F.2d 914, 925 (1st Cir. 1991). There was no abuse of
discretion.
Rose's Sentence _______________
Rose charges that the district court should not
have calculated his base offense level using the guideline
for robbery, because he had been acquitted of robbery.
Review of the purely legal question of the proper
interpretation of a sentencing guideline is de novo. United __ ____ ______
States v. Olbres, 99 F.3d 28, 35 (1st Cir. 1996). There is ______ ______
no error here.
The conspiracy guideline reflects "a policy
decision that conspiracies . . . be treated like substantive
offenses for sentencing purposes." United States v. ______________
Chapdelaine, 989 F.2d 28, 36 (1st Cir. 1993). This question ___________
is different from the acquitted conduct question faced by
this court in United States v. Mocciola, 891 F.2d 13, 16-17 ______________ ________
(1st Cir. 1989), and in Lombard, 72 F.3d at 174. _______
Furthermore, the Supreme Court recently held in United States _____________
v. Watts that a "jury's verdict of acquittal does not prevent _____
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the sentencing court from considering conduct underlying the
acquitted charge, so long as the conduct has been proved by a
preponderance of the evidence." -- S. Ct. -- (1997).
III.
Verrill _______
Verrill argues that the district court erred in
sentencing him as a career offender and as an armed career
criminal. Under the guidelines, an individual is considered
a career offender if (1) he was at least 18 years old at the
time he committed the offense for which he is being
sentenced; (2) the offense is a felony and either a crime of
violence or a substance abuse crime; and (3) the defendant
has at least two prior convictions for crimes of violence
and/or substance abuse crimes. U.S.S.G. 4B1.1. Verrill
argues, erroneously, that he does not meet the third
requirement.
A crime of violence is defined, in relevant part,
as a state or federal offense punishable by more than one
year in prison that "is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another." U.S.S.G. 4B1.2(1)(ii). Verrill's
presentencing report lists ten prior offenses: three
instances of entering a dwelling with intent to commit
larceny, three instances of breaking and entering, one
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instance of breaking and entering a dwelling with intent to
commit larceny, one instance of breaking and entering with
intent to commit larceny, one instance of possession of a
stolen vehicle, and one instance of escape. Six of the
offenses, at least four of which were clearly crimes of
violence, took place during a four month period when Verrill
was only eighteen years old. He therefore argues that they
should only count as a single offense. Verrill also argues
that none of his later offenses (breaking and entering,
breaking and entering with intent to commit larceny,
possession of a stolen vehicle, and escape) were crimes of
violence or involved a controlled substance.
Whether a particular offense qualifies as a
predicate offense for career offender purposes is reviewed de __
novo. United States v. Winter, 22 F.3d 15, 18 (1st Cir. ____ ______________ ______
1994). This court takes a categorical approach and looks to
the statutory definitions rather than the particular facts.
Id; see also Taylor v. United States, 495 U.S. 575, 598 __ _________ ______ ______________
(1990). It is therefore irrelevant that none of the facts
underlying the prior offenses for which Verrill was convicted
involved the use of physical force against another. Verrill
was convicted of breaking and entering and breaking and
entering with intent to commit larceny in violation of R.I.
Gen. Laws 11-8-4. On very similar facts, this court has
held that violation of that statute constitutes a crime of
-24- 24
violence for career offender purposes. United States v. _____________
Fiore, 983 F.2d 1, 4-5 (1st Cir. 1992). After all, burglars _____
may resort to violence if someone arrives while the burglary
is in progress. United States v. Patterson, 882 F.2d 595, ______________ _________
604 (1st Cir. 1989). Verrill's record shows, apart from his
activities when he was eighteen, that he has the requisite
two prior convictions to qualify as a career offender.
The district court's calculation of an offense
level of 34 is correct if Verrill is either a career offender
or an armed career criminal. Having determined that Verrill
was correctly sentenced as a career offender, there is no
need to reach the question of whether he also qualified as an
armed career criminal. Nor is there a need to reach any of
his other sentencing claims.9
Affirmed. _________
____________________
9. The district court only addressed these other issues to
ensure a complete record in the event that the decision to
sentence Verrill as a career offender and armed career
criminal was reversed on appeal.
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Document Info
Docket Number： 95-1171
Filed Date： 1/30/1997
Precedential Status： Precedential
Modified Date： 9/21/2015