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

bri

___________________
for appellant Norman Verrill.
Kenneth P. Madden,
__________________
Whitehouse,
__________

Assistant U.S.

U.S. Attorney,

and

Attorney, with

whom

Shel
____

Margaret E. Curran, Assistant

___________________

Attorney, were on brief, for appellee.

____________________
January 30, 1997
____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

of

the armed robbery of

Falls,

Rhode

convicted

Island

These two appeals arise

the Dexter Credit

on April

of conspiracy

6,

to rob

felon in

922(g)(1).

possession

Norman

of

Union in Central

1994.

Jamie Rose

a federally

union in violation of 18 U.S.C.

out

was

insured credit

371, 2113(a), and of being

firearm

Verrill was

in

violation

convicted of

the

of

same two

offenses and also of armed robbery and robbery of a federally

insured

credit union.

sentenced to 60 months'

and

to

120

possession;

sentenced as

months'

18 U.S.C.

2113(a),

(d).

Rose was

imprisonment on the conspiracy count

imprisonment

the sentences

are

for

being

consecutive.

a career offender and an

felon

Verrill

in

was

armed career criminal

to a term of 264 months.

On appeal, Rose raises a plethora of issues, two of

which are weightier than

issues

previously

the rest and require us

unresolved

by

this court.

to address

The

first

concerns

the jury charge that may properly be given based on

evidence

of a

property.

defendant's

The second

possession

of

recently

is whether the trial court

stolen

abused its

discretion by admitting a potentially inflammatory photograph

into evidence,

and if so, whether this

to

whether

determine

government has

not so

the

error

argued.

-22

court has discretion

was harmless

Verrill

where

the

appeals exclusively

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

Falls, Rhode Island.

the

The

Dexter Credit

credit union was

National Credit Union Administration.

Union in

Central

insured by

the

One robber brandished

a semi-automatic pistol while the two others

the teller stations.

black

pickup

vehicle.

took money from

A fourth masked man waited outside in a

truck, which

Credit union

the robbers

used as

a get-away

employees determined that $10,584 had

been stolen.1

Police arrived at the scene a few minutes after the

robbers had fled.

with

They found the

get-away truck abandoned,

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.

had

been

Both the FBI and

investigating

the Providence Police Department

Verrill,

Rose,

David

Vial

and

Christopher

robberies.

that the

Thibodeau in

connection with

a series

of bank

A confidential informant had provided information

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.

-33

officers,

consisting

of FBI

agents

and

Providence police

officers who were part of a bank robbery task force,

Vial's

home in North Providence

went to

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

months

and knew

that the

earlier and that

vehicle

had been

the license plates

stolen some

had been stolen

eleven days before the bank hold-up.

The

and

away

task force

members approached

identified themselves.

at

process.

high speed,

Rose,

nearly

The officers

began

who was

hitting

the Pathfinder

driving, pulled

two officers

shooting.

Vial

in

the

managed to

escape

temporarily: he

later hiding in a

and

was found

bush.

Thibodeau out of the

about forty-five

The officers ordered

vehicle.

minutes

Rose, Verrill

Thibodeau,

who had been

wounded, was lying on the front seat; when the police removed

him from

the car,

semi-automatic

Wesson

were

pistol in

his left

he was

holding a

hand and

had a

Glock

Smith &

automatic pistol in the waistband of his pants.

loaded with

Federal

The

they found that

Cartridge

Winchester

9 millimeter

hardball 9

millimeter

officers found two small gym bags,

Black Talon

Both

and

round ammunition.

containing over nine

thousand dollars and makeshift masks, in the back seat of the

Pathfinder.

Some

of the

money was

-4-

banded by

paper money

straps

bearing the markings of the Dexter Credit Union.

The

four men were arrested.

Rose

had

suffered

brought to Rhode Island

who

treated

ammunition

him

scalp

Hospital.

found

clip from

a Glock

laceration

and

was

The physician's assistant

screwdriver,

pager

semi-automatic pistol

and

an

in his

trouser

pockets.

These

items had

not

been found

in

an

earlier pat-down of Rose.

Later that

night, an

FBI agent executed

warrant at Rose's home in Providence.

a box

of Federal

but only containing 39

as a leather pistol case.

album

There, the agent found

Cartridge ammunition designed

rounds of ammunition

a search

to hold

rounds, as well

The agent also seized a photograph

containing pictures

of Rose

and others.

Among

photos were five of Rose holding what appeared to be

semi-automatic pistol.

on

50

the

a Glock

One of the photos showed Rose, finger

the trigger, pointing the

pistol at the

head of another

young man.

Defendants were

Dexter

Credit

charged with conspiracy to rob the

Union; armed

robbery

of

the credit

union;

robbery of

during

the credit

union; using

a crime of violence;

and carrying

and possession of

previously convicted felons.

Vial

men in the car, pleaded guilty

-55

a firearm

a firearm by

and Thibodeau, two of the

to some of the counts and the

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.

there was

The

no evidence

there was no basis

district

of what

court

ruled that,

because

Verrill's defense would

for concluding that Rose and

be,

Verrill had

antagonistic defenses.

Vial,

Verrill and

a government

Thibodeau entered

witness,

testified

the credit union

who had the Glock, remained outside in the truck.

that Thibodeau had

waited at

the door of

that

he,

while Rose,

Vial said

the credit

union

holding

money.

the Smith

& Wesson

while he

and Verrill

took the

He also testified that all four men fled in the truck

but then switched

Rose had left

to a

near the

second stolen vehicle

which he

and

credit union earlier

that day,

and

that soon afterwards, they moved to the Pathfinder.

Rose's consecutive

based

on the

guideline for

60 and 120 month sentences were

robbery,

dictated by the conspiracy guideline,

U.S.S.G.

U.S.S.G.

2B3.1, as

2X1.1.

The

conspiracy guideline requires that the base offense level for

a conspiracy

conviction be

that of the

-6-

substantive offense

plus adjustments for any

intended conduct.2

See
___

U.S.S.G.

2X1.1(a).

Verrill

was

sentenced

criminal pursuant to 18 U.S.C.

and as a

either

both

career

an

armed career

924(e) and U.S.S.G.

career offender pursuant to

an armed

as

criminal or

U.S.S.G.

as a

4B1.4,

4B1.1.

As

career offender,

Verrill's

offense

level was

34

and

his criminal

category VI, which translates into a guidelines

to 327 months.

He was

sentenced to 264 months.

history

range of 262

This appeal

ensued.

II.

Rose argues that his

for

several

discretion in

reasons:

that

and to sever

the trial

court made erroneous

and

the

denying the motions

Verrill's

rulings;

conviction should be reversed

that

trial

court

to sever

his trial

the felon-in-possession

the charge

and prejudicial

to

the

jury

abused

its

from

count; that

evidentiary

was at

times

____________________

2.
the

After determining the

court calculated

specific offense

the offense

characteristics,

level for

the conspiracy

count as 31 and the offense level for the felon-in-possession

count as
higher

27.
offense

determined that

The

district

level

of

Rose had a

court appropriately

31,

see
___

U.S.S.G.

used

3D1.3, and

criminal history category

The guideline range was 168 to

210 months.

the

of V.

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.

-77

erroneous

and at times incomplete.

We deal

first with his

more serious arguments.

Jury Instruction on Recently Stolen Property

____________________________________________

Rose

questions

charge to the jury.

the instruction

regarding the

away

In

vehicles,

aspects

of

the

court's

The most significant challenge concerns

permissibly draw from the

stolen items.

several

inferences that the

defendant's possession of recently

the context of discussing the

the

jury may

court

instructed

the

jury

stolen get-

that

the

possession of recently stolen property, if not satisfactorily

explained,

could

support an

person in possession

inference

not

knew that the property

only that

the

was stolen, but

also that he participated in the theft.3

This raises a question

circuit.4

of first impression in this

The challenged instruction is

of discretion

to determine

whether the

reviewed for abuse

charge, taken as

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

the stand.

argument has been

This latter

Supreme Court.

for failing

to take

rejected by

the

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

individual knew the property had been stolen.

items that

the

See generally
_____________

United States
_____________

v. Farnkoff,
________

535 F.2d 661,

666-67 (1st

Cir.

1976).

-88

(1st Cir. 1986) (quoting

United States v. Fishbach & Moore,

_____________
__________________

Inc., 750 F.2d 1183, 1195 (3d Cir. 1984)).

____

We join

have

the other

concluded that

circuit courts of

possession of recently

appeals that

stolen property

may support

that

an inference

property.

of participation

United States
_____________

in the

v. Clark, 45
_____

theft of

F.3d 1247, 1250

(8th Cir. 1995); United States v. Ferro, 709 F.2d 294, 296-97
_____________
_____

(5th Cir. 1983); United States

_____________

754-55 (2d Cir. 1979);

580-81

(4th

Cir.

Plemons, 455 F.2d

_______

rely

in

United States v. Long, 538

_____________
____

1976)

(per

243, 246

large part

v. DiGeronimo, 598 F.2d

__________

on

the

curiam);

746,

F.2d 580,

United States
______________

(10th Cir. 1972).

These

widespread acceptance

v.

cases

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

property.

in possession of recently

stolen

As the Second Circuit noted, in certain situations

the inference "would verge on the irrational" in light of the

other evidence in the case.

F.2d 1070, 1074-75

F.2d

at

754.

evidence

appropriate

act

as

(2d Cir. 1975); see

___

For example,

tending to

United States v. Tavoularis, 515

_____________
__________

in

support the

the absence

inference, it

to give the instruction.

check,

ensuring

"that

-99

also DiGeronimo, 598

____ __________

of additional

may not

be

The court must always

the

evidence

warrants

permitting the jury to draw [the] inference."

Clark, 45 F.3d
_____

at 1250.

Second,

inference

whether

the

rather than

the defendant's

stolen property

instruction

involves

presumption.

permissive

The decision

unexplained possession

supports the

conclusion that

about

of recently

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

claim

lessens the

ignores the other evidence

plates on the

the

applicability

inference.

in the case.

Pathfinder were stolen

robbery, the black pickup

robbery, and

of the

The license

within eleven days

truck within two

facts, the

theft

of the

inference

get-away cars

that Rose

is not

participated in

at all

of

days of the

Vial's testimony linked Rose to the truck.

these

This

On

the

unreasonable or

unwarranted.

Evidentiary Rulings
___________________

Rose

argues

that

the

admitting into evidence several

district

court

erred

by

items found in his apartment

and

that

this error

asserts that

was

not harmless.

the admission of

Specifically, he

photos of himself

with what appears to be

a Glock pistol, of a

case

showing where

and

a photograph

it

and others

leather pistol

was found

in his

-1010

apartment and

of

box of

ammunition for

a 9

millimeter

pistol violated

impact of

Fed. R.

Evid. 403, because

these items far outweighed

the prejudicial

their probative value.

Review of the trial court's evidentiary rulings is for

of

discretion.

United States
_____________

v. Lombard, 72
_______

abuse

F.3d 170, 187

(1st Cir. 1995).

This evidence, in general,

relevance.

crimes.

credit

Pistols played an

One of the

union.

second pistol.

robbers brandished a

linking

Rose

to

that Rose

was armed

pistols

were seized

a clip of ammunition

pistol was found on

Rose at the

tended

to

charged

pistol inside the

9 millimeter pistols

codefendant Thibodeau, and

automatic

important role in the

Vial testified

Two

met a threshold test of

with a

from

for a semi-

hospital.

corroborate

Items

Vial's

testimony

that Rose was a participant

in the conspiracy and

that he had possessed the Glock.

The presence

Rose's

of

home is evidence that

before the crime.

than by Smith

rather

than to

during

their deliberations,

and to

case for

Rose kept such

a pistol

in

a weapon there

That the case was manufactured by Browning

rather

weapons

a leather

& Wesson or

the relevance

the

Glock goes

of the

had

pistol case

evidence.

access to

and

to the weight

The jury,

the two

therefore could

determined whether either of the pistols fit the case.

-1111

seized

have

The

relevance

readily apparent.

that

found in

defendants were

fifty

of

the

ammunition

The ammunition

the two

guns seized

apprehended.

rounds, but

was of the

when Rose

The box was

contained only

is

even

more

same type

as

and his

co-

marked as holding

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.

trial

FBI Special

Agent Kevin Eaton

testified at

that the gun in the photographs appeared to be a Glock

firearm; Eaton

look.

stated that Glocks have

The photographs thus link

"a very distinctive"

Rose to one of the weapons

seized, providing strong corroboration for Vial's inculpatory

testimony.

The

ammunition,

pistol case

and four

and accompanying

of the

photograph, the

photographs showing

Rose with

what appeared to be a Glock were not unduly prejudicial.

One

of

the

the photos,

trigger,

is

however,

which shows

finger on

with his gun pointed at the head of another person,

potentially quite inflammatory.

photo

Rose,

could lead

a jury

to believe

Rose is correct that the

that anyone

who would

point a

possibly loaded pistol

extremely reckless

this

photograph was

at the

head of a

and capable of criminal

at

best cumulative

photographs linking Rose to

the gun.

-1212

friend is

acts.

of the

Moreover,

four other

The admission

of this

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

that the error

States
______

did not

(1st Cir. 1990).

734-35 (1993).

to

argue

532,

v. Benavente Gomez,
_______________

United
______

543 (1st

921 F.2d 378,

persuasion with respect to showing

harmless.

the defendant bears

failed

949 F.2d

verdict.

Cir.

386

In a harmless error inquiry, the government

bears the burden of

the error was

is highly probable

contribute to the

v. Rodriguez Cortes,
_________________

1991); United States

_____________

725,

harmless if it

United States v.
_____________

Olano, 507
_____

that

U.S.

By contrast, in a plain error argument,

the burden.

that

the

Id.
___

The government

here

court's

admission

the

of

photograph,

government's

preclude

if

error,

failure

to

be

raise

further review and

conviction be reversed

not.

would

harmless.

this issue

in

Does

its

automatically require

and sent

back for trial?

the

brief5

that the

We

think

Here we review to determine whether the government met

its burden

despite its failure explicitly

to argue harmless

error.

We join several other

holding that

circuit courts of appeals in

appellate courts have the

discretion on direct

appeal to overlook the government's failure to argue that the

____________________

5.

At

court,

oral
the

harmless.

argument, in
government

response

suggested

to

questions from

that any

error

must

the
be

-1313

admission of the challenged evidence, if error, was harmless,

and that appellate courts may therefore consider the issue of

harmlessness sua sponte.

1492 n.10 (11th

F.2d 692, 704 n.9

Horsley v. Alabama,
_______
_______

45 F.3d 1486,

Cir. 1995); United States v. Langston,

______________
________

(10th Cir. 1992); Lufkins v.

_______

970

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,

______________
___________

1991).

In Rodriguez Cortes,
________________

928 F.2d

225, 227

this court noted,

(7th Cir.

but did not

resolve, the question, having found the evidence admitted was

not harmless.

949 F.2d at 543.

Here,

we

plainly harmless.

of

the

find

The

additional

that

the

evidence

same."

a new

Id.
___

was

photograph was cumulative, the weight

evidence

overwhelming.

circumstances, "it would be a waste of judicial

require

admitted

trial where

the result

Under

such

resources to

is likely to

be the

Courts

engage in sua

have variously

grounded

sponte harmless error

the authority

review on the

to

arguably

mandatory language of Rule 52(a), which states that any error

which

does

not

affect

substantial

rights

disregarded," and on other related doctrines.

F.2d at 1351 (Randolph, J.,

is

the

cost

carelessness

to

the

concurring).

public

on the part of

of

new

"shall
_____

be

See Pryce, 938

___ _____

Of obvious concern

trials

because

of

the prosecutors on appeal where

-1414

the other evidence has

doubt

established guilt beyond a reasonable

and there is little reason to think the error infected

the jury

deliberations.

Also relevant

avoiding

incentives to

the government to

is the

interest in

fail to

make the

proper arguments.

The

the

test

Seventh Circuit

decides whether

to undertake

harmless error analysis sua sponte based on a three part

considering

"[1]

record, [2] whether the

found is certain

the

length and

complexity

harmlessness of the error or

or debatable,

and [3]

whether a

of

the

errors

reversal

will

result

in protracted,

costly,

proceedings in the district court."

227.

While

Circuit,

test.

we find

we do

not

helpful the

and ultimately

Giovannetti, 928 F.2d at

___________

reasoning of

restrict ourselves

to the

See Pryce, 938 F.2d at 1348 (opinion of

___ _____

(agreeing with

adopting the

the general

the Seventh

Giovannetti
___________

Williams, J.)

approach of Giovannetti
___________

specific factors).

futile

The

but not

exercise of discretion

involves the balancing of many elements.

Among these are the

state

arguments that

of

the

record and

government does make

harmlessness issue.6

____________________

whether

the

provide assistance to the court

the

on the

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

phenomenon is
response
weight

harmlessness.

when the

to an
of the

Another example

government marshals the

argument
evidence.

that the
That

verdict was

evidence

of this

evidence in
against the

too would

be

of

assistance to the court in a harmless error analysis.

-1515

The government's case is, of course, put at risk by

its failure

to

argue that

admission

of the

evidence

was

harmless.

it

may

Here,

not.

it survives the risk;

Although

the

discretion by admitting the

district

in other situations,

court

abused

its

photograph of the mock shooting,

that is not a basis for overturning the conviction.

Severance
_________

Rose

motions

challenges

to sever his trial

felon-in-possession

is for abuse

count.

of discretion.

the

district

court's

from Verrill's and

denial of

to sever the

See Fed. R. Crim. P. 14.

___

United States
_____________

Review

v. Levy-Cordero,
____________

67 F.3d 1002, 1007 (1st Cir. 1995), cert. denied,

____________

116 S. Ct.

1558

strong and

(1996).

Defendant on

specific showing of

greater

than that

appeal must

prejudice.

inherent

make a

The prejudice

in trying

shown must be

multiple counts

and

multiple defendants

F.2d 885, 896 (1st

F.2d 28,

together.

United States
_____________

v. Yefsky, 994
______

Cir. 1993); United States v.

_____________

30 (1st Cir. 1983).

Rose fails to

Walker, 706
______

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.

-1616

He argues that if

he

had

testified,

implicate

him.

Verrill

would

have

Rose

concludes

taken

that

he

the

stand

and Verrill

to

had

antagonistic defenses which required severance.

defenses

severance,

The

Supreme

Court

of

codefendants

reasoning that

with the facts of

has

do

not

the risk

each case.

held

that

conflicting

necessarily

of prejudice

require

will vary

Zafiro v. United States,

______
_____________

506

U.S. 534, 538

analysis,

(1993).

This court has

holding that

antagonistic

severance if the tensions

that the finder of

further refined

defenses only

between the defenses are

fact would have to believe

at the expense of the other.

the

require

so great

one defendant

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,

testimony would

motion

he

be.

and if so

The

judge

what the substance

offered to

of that

entertain

the

anew during trial if Verrill did in fact testify, but

had no

basis

prior to

trial

for concluding

codefendants had inconsistent defenses.

that

the

Of course, the trial

judge

grant a

had a "continuing duty

at all stages

of the trial to

severance if prejudice [] appear[ed]."

United States, 362

______________

U.S. 511,

516 (1960).

Schaffer v.
________

Like

the trial

judge in Schaffer, the trial judge here was "acutely aware of

________

the possibility

of prejudice,"

-1717

id., and was

___

explicit about

his

willingness to

sever if

a prejudicial

situation arose

during trial.

That eventuality never occurred.

Verrill

put

defenses.

had

not

Verrill

on any

evidence

Rose put on

been the

put

insufficient

to

counsel

establish

necessarily

essentially

the

witnesses at

antagonistic defenses.8

to show

two witnesses who

driver of

on no

tending

that

Neither Rose

conflicting

testified that he

black pickup

all.

the

nor

This

truck,7 and

testimony was

codefendants

had

Nor were the arguments made by their

contradictory.

argued that Rose

Rose's

had been nothing

attorney

more than an

accessory after the fact, while Verrill's counsel argued that

the government had failed to meet its burden of proof.

theories

level

are not

irreconcilable.

of antagonism in defenses is

actually

evidence.

introduced at

trial;

they were,

the

measured by the evidence

argument by

counsel is

not

Smith, 46 F.3d at 1230.

_____

Nor

did the

failing to sever the

that if that

have

Even if

These

trial court

abuse its

discretion in

felon-in-possession count.

count had

known of his status

been severed, the

as a convicted

Rose argues

jury would

felon.

never

He asserts

____________________

7.

Rose

also recalled

one

of

the

police officers

as

defense witness.

8.

Furthermore,

Rose's

claim

of

prejudice

rests on

premise that if Rose had testified, Verrill would

the

stand to implicate him.

This seems

the

have taken

improbable, for it

would have required Verrill to implicate himself as well.

-1818

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

with

the

occurrence.

other charges

Any

because it

prejudice

was

was properly

arose

limited

out of

tried

the same

because

Rose

stipulated

to

Consequently,

evidence

his

concerning the

(1997);

was

prior

convicted

not permitted

number and

nature of

felon.

to put

on

Rose's prior

Old Chief v. United States, -- S. Ct. -_________

_____________

United States v.
_____________

(en

as

the government

felony convictions.

1994)

status

banc).

Tavares, 21 F.3d
_______

Finally,

it

is

1, 4 (1st

improbable

that

Cir.

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

of

sufficient

crime

was

not

to

convict

him

the scene

on

the

conspiracy

charge.

The

requested instruction

trial

court's failure

on the defendant's theory

to

give a

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

seriously impaired

that the

failure

to give

the instruction

the defendant's

ability

to present

-1919

his

defense.

United States v.
______________

Cir. 1986); United States

_____________

Williams, 809 F.2d

________

75, 86

v. Gibson, 726 F.2d 869,

______

(1st

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

substance

of

the defendant's

instruction incorporates the

request.

Campbell, 874 F.2d 838, 844 (1st Cir. 1989).

________

United States
_____________

v.

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
is

not

a member of

sufficient

defendant

was

conspiracy.

to

prove

a member

Mere

the conspiracy,

of

that such
the alleged

similarity of

among various persons, and the

conduct
fact that

they may have associated with each other,

may

have

common

been

together

interests

is

and

discussed

not sufficient

to

establish membership in a conspiracy.

In

addition,

as

part

of the

instruction

on

abetting, the jury was explicitly told that mere

aiding

and

presence at

the scene of the crime, even when coupled with knowledge, was

insufficient

jury

to sustain a

charge

instruction, and

conviction.

substantially

covered

there was no error.

On

these facts, the

Rose's

proposed

Rose

also

contends

that

the

district

court's

instruction on drawing an inference of guilt from flight from

-2020

the

scene of the crime was incomplete.

instruction did

not explicitly

other possible inferences.

It is true that the

direct the jury

to consider

However, the charge did indicate

that it

was up to the

inference

of

guilt

jury to determine whether

from

the flight.

substance of Rose's requested charge.

88.

Furthermore, a

court need only

This

to draw an

conveys

Williams, 809
________

the

F.2d at

instruct the jury on

defense theory if there is supporting evidence in the record.

United States v.
______________

1986).

790 F.2d

Rose's counsel suggested

by arguing

given

Silvestri,
_________

However,

no

was

surrounded by

evidence

was

192 (1st

Cir.

another possible inference

in closing that Rose's

that he

186,

adduced

flight was understandable

men

to

with drawn

this

weapons.

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.

of

discretion.

United States
_____________

(1st Cir. 1993).

an

v. Welch, 15
_____

abuse

F.3d 1202, 1214

One of the situations that may warrant such

instruction is when

relevant,

We review for

noncumulative

a party with

evidence

exclusive control over

fails

to

produce

that

evidence.

Cf. United States v. St. Michael's Credit Union,

___ _____________
___________________________

880

579,

F.2d

instruction).

the

597

(1st

Cir.

1989)("missing

Rose argues that the FBI's failure

ammunition clip

found

on his

-2121

person for

witness"

to examine

fingerprints

justified the missing

evidence instruction.

However,

this

was not a case where the government failed to provide readily

available

evidence.

The

fingerprint

collected.

Rose's

counsel was

evidence

free to argue

was never

that, in

the

absence of such evidence, the government had not sufficiently

linked Rose to the crime.

F.2d

914,

discretion.

925

(1st Cir.

See United States v. Martinez, 922

___ _____________
________

1991).

There

was

no

abuse of

Rose's Sentence
_______________

Rose

charges that

have calculated

for

his base

robbery,

Review

of

because

the

the

district court

offense level using

he had

purely

legal

been

the guideline

acquitted of

question

interpretation of a sentencing guideline

States v. Olbres,
______
______

should not

the

proper

is de novo.
__ ____

United
______

99 F.3d 28, 35 (1st Cir.

of

robbery.

1996).

There is

no error here.

The

conspiracy

guideline

reflects

"a

policy

decision that

conspiracies . . . be treated like substantive

offenses

sentencing

for

Chapdelaine,
___________

is

purposes."

United States
______________

989 F.2d 28, 36 (1st Cir. 1993).

different from

the acquitted

v.

This question

conduct question

faced by

this court in United States v. Mocciola, 891 F.2d

______________
________

(1st

Cir.

1989),

and

in

Lombard,
_______

72

F.3d

13, 16-17

at

174.

Furthermore, the Supreme Court recently held in United States

_____________

v. Watts that a "jury's verdict of acquittal does not prevent

_____

-2222

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

sentencing

argues that

him as a career

criminal.

Under the

the district

offender and as

court erred

an armed career

guidelines, an individual is considered

a career offender if (1) he was at least 18 years old

time

he

committed

the

offense

sentenced; (2) the offense is a

violence or

has

at least

in

a substance abuse

for

which

he

is

at the

being

felony and either a crime of

crime; and (3)

two prior convictions

for crimes

the defendant

of violence

and/or substance

argues,

abuse crimes.

erroneously,

that

he

U.S.S.G.

4B1.1.

does

meet

not

Verrill

the

third

requirement.

A crime

as a state

of violence is defined,

or federal

year in prison

offense punishable by

that "is

burglary of a

extortion, involves use of

conduct that

injury

presents a

to another."

presentencing

instances

of

larceny,

three

report

entering

in relevant part,

more than

dwelling, arson,

U.S.S.G.

lists

instances

or

explosives, or otherwise involves

serious potential risk

one

4B1.2(1)(ii).

ten

prior

dwelling with

of

breaking

of physical

Verrill's

offenses:

intent

and

to

three

commit

entering,

one

-2323

instance of breaking and

commit larceny,

intent to

stolen

offenses,

one instance

commit larceny,

vehicle,

entering a dwelling with

and one

at least

four

of breaking and

one instance

instance of

of which

intent to

entering with

of possession

escape.

were

Six

of a

of the

clearly crimes

violence, took place during a four month period

of

when Verrill

was only eighteen years

should only count as

that

none

breaking

of his

and

possession

old.

He therefore argues

a single offense.

later

entering

of a stolen

offenses

with

Verrill

that they

also argues

(breaking and

intent

to

entering,

commit

vehicle, and escape)

larceny,

were crimes of

violence or involved a controlled substance.

Whether

particular

offense

qualifies

as

predicate offense for career offender purposes is reviewed de

__

novo.
____

United States v. Winter,

______________
______

1994).

definitions rather than

see also Taylor

_________ ______

(1990).

15, 18

(1st Cir.

This court takes a categorical approach and looks to

the statutory

Id;
__

22 F.3d

the particular facts.

v. United States,
______________

It is therefore

495 U.S.

irrelevant that none

575, 598

of the facts

underlying the prior offenses for which Verrill was convicted

involved the use of physical

was

convicted

of breaking

force against another.

and

entering

entering with intent

to commit larceny in

Gen. Laws

On

11-8-4.

held that violation

and breaking

-2424

and

violation of R.I.

very similar facts,

of that statute

Verrill

this court has

constitutes a crime

of

violence

Fiore, 983
_____

for career

offender

F.2d 1, 4-5 (1st Cir. 1992).

may resort to violence if

is

604

purposes.

in progress.

v.

After all, burglars

someone arrives while the burglary

United States v. Patterson,

______________
_________

(1st Cir. 1989).

activities when

United States
_____________

882 F.2d 595,

Verrill's record shows, apart from his

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.

was correctly

sentenced as

Having determined that Verrill

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
sentence

a complete record in
Verrill

as

the event that

career offender

criminal was reversed on appeal.

-2525

and

the decision to
armed

career