USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1113
UNITED STATES,
Appellee,
v.
RAYMOND J. GARY,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
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Before
Selya and Boudin, Circuit Judges,
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and Saris,* District Judge.
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Marie T. Roebuck for appellant.
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Sheldon Whitehouse, United States Attorney, with whom
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Gerard B. Sullivan and Margaret E. Curran, Assistant United
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States Attorneys, were on brief for appellee.
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January 5, 1996
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* Of the District of Massachusetts, sitting by designation.
SARIS, District Judge. After his first jury trial
SARIS, District Judge.
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ended in deadlock, defendant Raymond J. Gary ("Gary") was
convicted by a second jury of possession of a firearm by a felon,
in violation of 18 U.S.C. 922(g). He was sentenced to over
twenty-four years incarceration as an armed career criminal
pursuant to 18 U.S.C. 924(e).
Gary raises six issues on appeal: (1) whether the
district court violated his Sixth Amendment right to compulsory
process by precluding him from calling a defense witness who
would provide exculpatory information on direct examination but
would assert the Fifth Amendment with respect to non-collateral
issues on cross-examination; (2) whether the district court erred
in finding that this defense witness had not waived his Fifth
Amendment privilege against self-incrimination by virtue of his
testimony at the first trial; (3) whether the government properly
sought authorization to prosecute under the U.S. Justice
Department guidelines regarding dual federal-state prosecutions
(i.e., the "Petite policy"); (4) whether Gary was selectively
prosecuted on account of his race; (5) whether Gary received a
fair trial in light of the government's reliance on what he
contends was "perjured testimony by a law enforcement official";
and (6) whether the district court misapplied U.S.S.G. 4B1.4 in
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determining Gary's total offense level.1 We affirm the
conviction and sentence.
I. STATEMENT OF THE CASE
I. STATEMENT OF THE CASE
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A. FACTS
A. FACTS
We set forth the evidence in the light most favorable
to the verdict. United States v. Tuesta-Toro, 29 F.3d 771, 773
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(1st Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct. 947 (1995).
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On May 14, 1994, Gary and a friend, Eric Hopkins, spent
part of the evening going to nightclubs. After midnight,
Patrolman James Joseph Corry of the North Providence Police
Department encountered Gary and Hopkins when they were attempting
to break into Rhode Island Auto Radio. Earlier that evening,
they had stolen some vases from a furniture store elsewhere in
North Providence. Upon seeing Corry, Hopkins fled on foot and
Gary attempted to escape by car at high speed. Gary lost control
of the vehicle, which left the road and struck the foundation of
an adjacent building. Corry caught up to Gary as he was
attempting to exit the wrecked automobile. Gary resisted arrest,
and the efforts of several officers were necessary to subdue him.
Once the officers successfully apprehended Gary, they conducted a
"pat-down" search for weapons. At that time, a loaded and fully-
operable Colt .25 caliber handgun fell from Gary's waistband.
Hopkins also was arrested, and a Dickson .25 caliber semi-
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1 Gary also contends he did not receive a fair trial in light of
the totality and cumulative effect of the trial court's errors.
Since we do not find error with respect to any of the issues, we
do not address this claim separately.
-3-
automatic pistol was seized from him. Hopkins later admitted to
possessing the firearm.
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B. PROCEEDINGS BELOW
B. PROCEEDINGS BELOW
Gary and Hopkins each were initially charged in state
court with violations of the Rhode Island General Laws.2 On
June 9, 1994, a federal grand jury returned an indictment
charging both with possession of a firearm by a felon in
violation of 18 U.S.C. 922(g). On August 31, 1994, the
government filed a notice that, if Gary was convicted, it would
seek a penalty enhancement pursuant to the Armed Career Criminal
Act ("ACCA"), 18 U.S.C. 924(e)(1). Hopkins pled guilty, on
September 8, 1994.
From October 13 to 17, 1994, Gary was tried by a jury
before Judge Raymond J. Pettine. Hopkins, who was represented by
counsel, testified on Gary's behalf and was cross-examined by the
government concerning the break-ins, the circumstances of the
arrest, and the firearms. The proceedings ended in a mistrial
when the jury announced that it was unable to reach a verdict.
Gary's case then was transferred to Judge Mary M. Lisi,
before whom the second jury trial commenced on October 25, 1994.
When Gary attempted to call Hopkins to the stand, however, the
government objected on the grounds that Hopkins would invoke his
Fifth Amendment right against self-incrimination during cross-
examination. At a conference and subsequent voir dire outside
the presence of the jury, Gary proffered that Hopkins would
testify that, while they were together at nightclubs on the night
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2 Gary was charged with possession of a firearm, breaking and
entering, conspiracy, assault with a dangerous weapon, and
reckless driving.
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of May 14, 1994, he never saw Gary possess a firearm and that
they were together until approximately ten minutes preceding the
automobile wreck after which Gary was arrested. In the voir
dire, Hopkins asserted his privilege against self-incrimination
in response to questioning about the breaking and entering, which
immediately preceded his arrest. Hopkins was then facing pending
state breaking and entering charges and a parole revocation
proceeding and had not yet been sentenced on the federal charge.
Although Hopkins had testified in the first trial
regarding the breaking and entering and had been assisted by
counsel at that time, the court held that his prior testimony was
not a voluntary, knowing, and intelligent waiver of his Fifth
Amendment privilege, particularly because Hopkins' separate
counsel for the state proceedings had not been informed that
Hopkins would be appearing in federal court.3 Moreover, the
court held that the government's intended cross-examination
regarding the breaking and entering was "germane" and
"permissible" and thus refused to restrict its scope.
After excusing Hopkins from testifying, the court
permitted Gary to introduce Hopkins' prior recorded testimony
from the first trial by having it read to the jury by Hopkins'
state counsel. Notwithstanding this ruling, Gary argued that his
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3 Hopkins was represented by three different attorneys in the
various federal and state proceedings who apparently did not
communicate in advance of Hopkins' testimony in the first trial.
In addition, when Gary's counsel interviewed Hopkins to solicit
information upon which his testimony in the first trial was
based, she asked permission only of the attorney representing
Hopkins on the federal charges.
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Sixth Amendment right to compulsory process was violated and
moved for a mistrial on that ground. This motion was denied.
The jury returned a verdict of guilty on October 28,
1995. Gary was sentenced as an armed career criminal to twenty-
four years and two months imprisonment, five years of supervised
release, and a $50 special assessment. Judgment was entered on
January 19, 1995, and Gary filed a timely notice of appeal.
II. ANALYSIS
II. ANALYSIS
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A. Sixth Amendment Compulsory Process
A. Sixth Amendment Compulsory Process
This case requires us to harmonize a conflict between a
defendant's Sixth Amendment right "to have compulsory process for
obtaining witnesses in his favor," U.S. Const. amend. VI, and the
government's interest in cross-examining a defense witness who
has invoked his Fifth Amendment right against self-incrimination.
Gary contends that his right to compulsory process was
denied when the trial court refused to permit Hopkins to testify
and instead only permitted Hopkins' testimony from the first
trial to be read to the jury. Gary argues that the trial court
should have required Hopkins to invoke his right against self-
incrimination during cross-examination in the jury's presence.
"The right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain terms the
right to present a defense . . . . This right is a fundamental
element of due process of law." Washington v. Texas, 388 U.S.
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14, 19 (1967); see also Chambers v. Mississippi, 410 U.S. 284,
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302 (1973). The Sixth Amendment, however, does not provide "an
unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of
evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1988). As the
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Supreme Court noted in an opinion upholding a trial judge's
decision to preclude a defense witness's testimony on evidentiary
grounds, "[t]he Sixth Amendment does not confer the right to
present testimony free from the legitimate demands of the
adversary system; one cannot invoke the Sixth Amendment as a
justification for presenting what might have been a half-truth."
United States v. Nobles, 422 U.S. 225, 241 (1975).
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While the government's interest in cross-examining
defense witnesses is not rooted in the Constitution, see United
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States v. Pardo, 636 F.2d 535, 542 n.21 (D.C. Cir. 1980) ("The
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government of course has no Sixth Amendment or other
constitutional right to cross-examine defense witnesses."), one
of the legitimate demands of the adversary system is the right of
cross-examination. See Fed. R. Evid. 611(b) (permitting cross-
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examination "limited to subject matter of the direct examination
and matters affecting the credibility of witness"). "Cross-
examination is the principal means by which the believability of
a witness and the truth of his testimony are tested." Davis v.
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Alaska, 415 U.S. 308, 316 (1974). As Professor Wigmore stated:
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The main and essential purpose of
confrontation is to secure for the
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opponent the opportunity of cross-
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examination. The opponent demands
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confrontation, not for the idle purpose
of gazing upon the witness, or of being
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gazed upon by him, but for the purpose of
cross-examination, which cannot be had
except by the direct and personal putting
of questions and obtaining immediate
answers.
5 J. Wigmore, Evidence 1395, at 150 (Chadbourne rev. 1974)
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(emphasis in original), quoted in Davis, 415 U.S. at 315-16; see
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also United States v. Stubbert, 655 F.2d 453, 457 (1st Cir. 1981)
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(quoting same).
Courts have not permitted defendants to call witnesses
to the stand who have indicated that they will refuse to answer
the government's questions on cross-examination with respect to
non-collateral matters. In United States v. De La Cruz, 996 F.2d
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1307 (1st Cir.), cert. denied, __ U.S. __, 114 S. Ct. 356 (1993),
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the defendant called his friend and former co-defendant as a
witness, but in a voir dire examination, he refused to answer any
questions other than his name and address on self-incrimination
grounds. In response to the suggestion that the government's
cross-examination should be limited so that the defense witness's
privilege need not be invoked, we held that "effective cross-
examination would have been seriously impaired if the prosecutor
were denied latitude to explore the joint criminal history" and
affirmed the trial judge's decision not to permit the witness to
testify. Id. at 1312-14. See also United States v. Parcels of
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Land, 903 F.2d 36, 43 (1st Cir. 1990) ("It is well-accepted that
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a witness's direct testimony can be stricken if she invokes the
fifth amendment on cross-examination to shield that testimony
from scrutiny.") (citing cases); United States v. Zirpolo, 704
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F.2d 23, 25-26 (1st Cir.) (when defense witness rightfully
refuses to answer questions based on the privilege against self-
incrimination, trial court need not limit scope of government's
cross-examination on conversations relating to other
contemporaneous drug offenses), cert. denied, 464 U.S. 822
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(1983); accord Denham v. Deeds, 954 F.2d 1501, 1503-04 (9th Cir.
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1992) ("We . . . join with those circuits that have permitted the
exclusion of a defense witness's testimony when the witness has
refused on cross-examination to respond to questions on non-
collateral matters."); United States v. Esparsen, 930 F.2d 1461,
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1469-70 (10th Cir. 1991) (same), cert. denied, 502 U.S. 1036
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(1992); United States v. Doddington, 822 F.2d 818, 822 (8th Cir.
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1987) (trial court properly struck direct testimony of defense
witness who invoked Fifth Amendment during cross-examination).
Attempting to combat this solid phalanx of precedent,
Gary cites cases in which courts permitted government witnesses
to invoke the privilege against self-incrimination during
defendant's cross-examination without violating the Confrontation
Clause of the Sixth Amendment. See United States v. Berr o-
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Londo o, 946 F.2d 158, 160-61 (1st Cir. 1991), cert. denied, 502
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U.S. 1114 (1992); Stubbert, 655 F.2d at 457-58. Each of these
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cases rely on the Second Circuit's much-cited holding in United
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States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied,
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375 U.S. 822 (1963) that:
In determining whether the testimony of a
witness who invokes the privilege against
self-incrimination during cross-
examination may be used against the
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defendant, a distinction must be drawn
between cases in which the assertion of
the privilege merely precludes inquiry
into collateral matters which bear only
on the credibility of the witness and
those cases in which the assertion of the
privilege prevents inquiry into matters
about which the witness testified on
direct examination.
When cross-examination is precluded only with respect to
collateral issues, the Sixth Amendment does not require the court
to strike the witness's testimony. See Berr o-Londo o, 946 F.2d
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at 161 (refusing to strike direct testimony when cross-
examination limited to issues "not relevant to Berr o-Londo o's
guilt or innocence"); Stubbert, 655 F.2d at 457-58.
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When cross-examination on material issues raised on
direct examination is curtailed because of a witness's valid
claim of privilege, however, the trial court, in its discretion,
may refuse to permit that witness's testimony. See De La Cruz,
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996 F.2d at 1313-14. Just as the trial court must be vigilant in
ensuring that a defendant has a full and fair cross-examination,
see Cardillo, 316 F.2d at 611, it must similarly safeguard the
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government's cross-examination "to prevent coconspirators from
'whitewashing' each other through the use of testimony
unchallengeable for one reason or another." Zirpolo, 704 F.2d at
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26 (quoting United States v. Lowell, 649 F.2d 950, 962 (3d Cir.
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1981)).
We have recognized that it "may sometimes be feasible
for a district court to reconcile the defendant's right to
present witnesses with a witness's privilege against self-
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incrimination by limiting the scope of the latter's testimony."
Id. at 26. In striking the appropriate balance between a
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defendant's Sixth Amendment rights and the government's interest
in cross-examination, a "trial judge may or even must limit the
government's cross-examination on collateral matters if this can
be done without unduly limiting the government and if doing so
will preserve the defendant's ability to call a material witness
who would otherwise claim the privilege." De La Cruz, 996 F.2d
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at 1313; see also Pardo, 636 F.2d at 544 ("[W]here the rights of
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the defendant and the government can be reconciled, the
defendant's constitutional right to procure testimony in his
favor must prevail.").
Where, as here, a defense witness's claim of privilege
shields material testimony from cross-examination, however, this
balance weighs against the defendant. The trial court held a
voir dire hearing to determine whether the subject matter
concerning which the witness intended to assert the Fifth
Amendment was collateral. She fairly concluded that it was not.
See Fed. R. Evid. 611(b) (giving court authority to exercise
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reasonable control over examination of witnesses to "make the
interrogation and presentation effective for the ascertainment of
the truth").
In considering similar types of challenges brought
under the Confrontation Clause of the Sixth Amendment, we have
applied an abuse of discretion standard. See Berr o-Londo o, 946
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F.2d at 160 (holding that trial court did not abuse its
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discretion by refusing to strike witness's testimony on direct
examination when witness asserted Fifth Amendment on collateral
matters on cross-examination, particularly when witness was
required to invoke privilege in presence of jury). We apply the
same abuse of discretion standard in determining kindred
challenges under the Compulsory Process Clause of the Sixth
Amendment. See United States v. Blum, 62 F.3d 63, 67 (2d Cir.
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1995) (applying abuse of discretion standard to review
evidentiary decision challenged on Compulsory Process Clause
ground). We find no abuse of discretion here.
According to Gary's proffer, "Hopkins would have
testified that during the course of the evening, he was able to
observe [Gary] and never visually saw a firearm on his person,
nor was one detected by the metal detectors, or doorman at the
nightclubs." Hopkins' testimony certainly was material to the
defense as it showed that, after a significant period of
observation, he did not see Gary possess a firearm. However, at
the first trial, Hopkins testified that the pair had been
involved in two instances of breaking and entering after leaving
the clubs and that he did not know whether Gary had hidden a gun
in his car before going to the clubs. Had Hopkins been permitted
to testify and to refuse to answer questions regarding the
breaking and entering, as he told the court he would, the
government's cross-examination of Hopkins would have been
rendered ineffective.
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Thus the trial court found, "[t]he matters that Mr.
Hopkins would have testified to and, in fact, did testify to at
the previous trial were closely related in time and space to the
matter that is before the Court in which the jury must consider.
And therefore, all of the information that would have been
elicited or attempted to have been elicited by the Government
would have been germane and would have been permissible." We
discern no abuse of discretion in the trial court's determination
that the subject matter of the cross-examination as to which
Hopkins would have asserted his privilege was material and
relevant. Any limitation on cross-examination would have been
unduly prejudicial to the government.
Furthermore, in striking the appropriate balance, the
trial court took into consideration that Gary was not deprived of
an opportunity to present Hopkins' testimony. Although Hopkins
did not appear personally in the second trial, his testimony from
the first trial was read in full to the jury. It was read with
counsel for the government and for Gary each reading their
respective parts and a third person reading Hopkins' responses.
Indeed, at oral argument Gary's counsel engaged in a brief
thespian demonstration intended to convey the desiccated manner
in which Hopkins' testimony was read at Gary's second trial. We
noted then, and reiterate today, that whenever transcript
testimony is admitted in a trial, the fact-finder is deprived of
a full-fledged opportunity to assess directly the credibility and
demeanor of the declarant. The rules of evidence, however,
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permit such evidence to be admitted at trial. See Fed. R. Evid.
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804(b)(1) (former testimony exception to hearsay rule).
Gary suggests that, rather than prohibit Hopkins' live
testimony altogether, the trial court should have permitted
Hopkins to testify on direct examination and forced him to invoke
the Fifth Amendment privilege on cross-examination in the
presence of the jury. That solution, Gary argues, strikes a more
appropriate balance between the government's and the defendant's
interests because "the government could have used the transcript
to impeach this testimony or could have relied upon the adverse
inference of the witness's invocation of the Fifth." This
approach finds some support in United States v. Kaplan, 832 F.2d
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676 (1st Cir. 1987), cert. denied, 485 U.S. 907 (1988), where we
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held that when "a non-party government witness invokes the Fifth
Amendment on cross-examination at trial, the court should permit
the assertion of the privilege in the presence of the jury. The
invocation of the privilege acts as a form of impeachment." Id.
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at 684.
In Kaplan, we distinguished United States v. Johnson,
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488 F.2d 1206 (1st Cir. 1973), in which we held that a court did
not abuse its discretion in refusing to allow a defense witness
to take the stand when, after direct examination was completed,
that witness would assert the Fifth Amendment as to "essentially
all" questions on cross-examination. Id. at 1211. The basis for
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the distinction follows:
A different case is presented where, as
here, the defense seeks to cross-examine
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a government witness within the scope of
his direct and then the witness asserts
the privilege. We note, first, that the
impact on the jury's deliberations from
asserting the privilege has to be less
here than in Johnson from the fact that
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Brown did not claim the privilege
comprehensively. Instead, Brown answered
most questions put to him by the defense
and could have refused to answer at trial
only those bearing on the alleged cocaine
abuse. And whatever danger exists that
the jury may give too much weight to this
line of questioning is small in
comparison to its impeachment value.
Kaplan, 832 F.2d at 684.
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Unlike Kaplan, where the invocation of the Fifth
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Amendment pertained to a collateral matter -- the effect of
alleged cocaine abuse on the witness's power of memory or
observation -- here the assertion of the privilege would have
shielded the witness from testifying on a core issue addressed on
direct examination. Hopkins' claim of privilege would have
precluded government inquiry into the intervening events between
the time Hopkins observed the defendant to have no firearm and
the time the police officer testified he saw a gun in defendant's
possession. Such testimony would have been directly relevant to
Gary's guilt or innocence. Accordingly, while the trial judge
may have had the discretion to strike a balance along the lines
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proposed by the defendant,4 there was no abuse of discretion in
striking the balance a different way.5
B. Waiver of Fifth Amendment Privilege
B. Waiver of Fifth Amendment Privilege
Against Self-Incrimination
Against Self-Incrimination
Gary asserts that Hopkins waived his privilege against
self-incrimination by virtue of his testimony in the first trial
regarding the breaking and entering. Therefore, he contends, the
trial court wrongly sustained Hopkins' claim of privilege in the
second trial.
The Fifth Amendment privilege is "fundamental to our
system of constitutional rule." Miranda v. Arizona, 384 U.S.
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436, 469 (1966). However, "the privilege against self-
incrimination presupposes a real danger of legal detriment
arising from the disclosure." Rogers v. United States, 340 U.S.
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367, 372-73 (1951). Thus the privilege may be waived, see id. at
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370-71, or obviated by a prosecutorial grant of immunity. See
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Kastigar v. United States, 406 U.S. 441, 461-62 (1972); cf.
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United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir.) (court
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ordinarily cannot grant immunity), cert. denied, 498 U.S. 845
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(1990).
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4 There is no evidence in the record that the defendant proposed
this particular solution to the trial judge.
5 We also note that if Gary had opted to testify as to whether
he possessed a gun at the time of his arrest, he would not have
been permitted to take the Fifth Amendment with respect to the
breaking and entering offenses which immediately preceded. See
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Brown v. United States, 356 U.S. 148, 155-57 (1958) (holding that
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defendant's exercise of right to testify in own behalf waives his
Fifth Amendment privilege against self-incrimination).
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Once a witness voluntarily has revealed an
incriminating fact, "the privilege cannot be invoked to avoid
disclosure of the details." Rogers, 340 U.S. at 373. However,
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"[i]t is hornbook law that the waiver is limited to the
particular proceeding in which the witness appears." United
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States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976) (co-
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defendant's submission to deposition in unrelated criminal
proceeding not waiver of Fifth Amendment in proceeding in which
co-defendant called as witness); see also Johnson, 488 F.2d at
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1210-11 (witness's disclosures in entering guilty plea at Rule 11
hearing do not constitute waiver of privilege at co-defendant's
trial); Kirane v. City of Lowell, 622 F. Supp. 262, 265 (D. Mass.
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1985) ("[A] person who waives his privilege as to the one trial
[is not] estopped from asserting the privilege as to the same
matter in a subsequent trial or proceeding."); 8 J. Wigmore,
Evidence 2276, at 470-72 (McNaughton rev. 1961) ("The waiver
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involved is limited to the particular proceeding in which the
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witness volunteers the testimony or the accused takes the stand .
. . . Nor is his testimony at a first trial a waiver for a later
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trial.") (emphasis in original). Therefore, Gary's contention
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that Hopkins waived his privilege in the second trial by
testifying in the first trial is misplaced.6
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6 The trial court arrived at the same conclusion by a different
path, namely, that Hopkins' decision to testify at the first
trial was not a voluntary, knowing, and intelligent waiver of his
Fifth Amendment privilege because he had not been fully apprised
of the consequences of his testimony with respect to the state
proceedings. In light of the above discussion, we need not
address the propriety of this decision. See In re Morganroth,
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C. The "Petite Policy"
C. The "Petite Policy"
Gary contends that his federal prosecution violated the
Justice Department's policy guarding against dual federal-state
prosecutions. See Petite v. United States, 361 U.S. 529 (1960)
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(per curiam) (vacating conviction at government's request because
prosecution contravened internal Justice Department policy
forbidding multiple prosecutions for same criminal conduct).
"The Petite policy is an internal Justice Department policy
forbidding federal prosecution of a person for alleged
criminality which was 'an ingredient of a previous state
prosecution against that person'; exceptions are made only if the
prosecution will serve 'compelling interests of federal law
enforcement.'" United States v. McCoy, 977 F.2d 706, 712 (1st
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Cir. 1992) (quoting Thompson v. United States, 444 U.S. 248, 248
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(1980)) (citation omitted). See also Rinaldi v. United States,
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434 U.S. 22, 24 n.5 (1977) (per curiam) (policy bars dual
federal-state prosecution). We have repeatedly held that the
Petite policy does not confer substantive rights on criminal
defendants. See McCoy, 977 F.2d at 712; United States v. Booth,
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673 F.2d 27, 30 (1st Cir.), cert. denied, 456 U.S. 978 (1982).
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D. Selective Prosecution
D. Selective Prosecution
Gary's contention that he was entitled to an
evidentiary hearing on the ground of selective prosecution is
similarly without merit. Although the exercise of prosecutorial
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718 F.2d 161, 165 (6th Cir. 1983) (holding that waiver of
privilege against self-incrimination is "proceeding specific").
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discretion is subject to the constitutional guarantee of equal
protection and "may not be deliberately based upon an
unjustifiable standard such as race, religion, or other arbitrary
classification," Wayte v. United States, 470 U.S. 598, 608
_____ ______________
(1985) (internal quotation marks and citations omitted), the
prosecutor is entitled to "a threshold presumption that [he]
acted 'in good faith for reasons of sound governmental policy.'"
United States v. Pe agar cano-Soler, 911 F.2d 833, 837 (1st Cir.
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1990) (quoting United States v. Saade, 652 F.2d 1126, 1135 (1st
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Cir. 1981)).
As an initial matter, we note that Gary did not timely
raise this issue before the district court. In a brief colloquy
on the morning of trial, Gary's counsel first raised the issue of
selective prosecution to the trial judge but admitted that she
had not filed a motion for an evidentiary hearing. In the
absence of exceptional circumstances -- and none are presented
here -- a claim of selective prosecution that is not raised prior
to trial is deemed waived. Tracey v. United States, 739 F.2d
______ ______________
679, 682 (1st Cir. 1984), cert. denied, 469 U.S. 1109 (1985).
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Even if the motion had been timely filed, the burden is
upon the defendant to make an initial showing that an evidentiary
hearing is warranted. "A selective prosecution claim merits
evidentiary hearing if it alleges sufficient 'facts a) tending to
show that [defendant] has been selectively prosecuted and b)
raising a reasonable doubt about the propriety of the
prosecution's purpose' . . . unless the government can present
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countervailing reasons." Pe agar cano-Soler, 911 F.2d at 838
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(quoting Saade, 652 F.2d at 1135). A trial judge's decision not
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to hold an evidentiary hearing is reviewed for abuse of
discretion. See id.
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Here, Gary did not make any threshold showing to the
trial court tending to show selective prosecution, i.e., "that
[he] was prosecuted while others similarly situated were not."
United States v. Bassford, 812 F.2d 16, 20 (1st Cir.), cert.
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denied, 481 U.S. 1022 (1987). Gary attempts to make the required
______
showing to this Court by appending "statistics" purporting to
demonstrate evidence of systemic selective prosecution in the
District of Rhode Island. Gary did not present this information
to the trial court, and we will not consider on appeal
evidentiary submissions that were not presented below. United
______
States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983).7
______ ________
E. Reliance on Perjured Testimony
E. Reliance on Perjured Testimony
Gary contends that his conviction was somehow tainted
by allegedly perjurious testimony that was elicited in his first
_____
trial. Specifically, he contends that Officer John Arzoomanian
____________________
7 These so-called statistics, compiled by hand by defense
counsel based on "information and belief," are comprised solely
of a list of prosecutions brought in the District of Rhode Island
under 18 U.S.C. 922 and 924 from 1990-1994 purporting to show
that 70% of those prosecuted were members of a minority racial or
ethnic group. The statistics do not address whether similarly
situated whites were not prosecuted. Given the procedural
posture of this case, we need not resolve the difficult question
as to when raw data demonstrate a statistical disparity
sufficient to trigger the need for a hearing. See Pe agar cano-
___ _____________
Soler, 911 F.2d at 837-38.
_____
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of the North Providence Police Department committed perjury at
the first trial when testifying as to why he did not fingerprint
the firearm that was seized from Gary. In Gary's first trial, in
response to a question on re-direct examination as to why he did
not attempt to recover fingerprints, he answered: "As far as the
size of the gun -- the surface of the weapon, also the people
involved in the case both had gloves on." (emphasis added). On
__________________
re-cross, Arzoomanian hedged:
Q. And you didn't bother to attempt to
lift a print in this case because
this man had gloves on; is that your
testimony?
A. Well, there were gloves found at the
scene and gloves found in the vehicle
also.
At the second trial, however, Arzoomanian testified that after
the arrest, but before the first trial, he learned that the
gloves actually belonged to rescue personnel. He explained:
"You asked the reason why I didn't print the weapon. I said
because he had gloves on. And I found out later, he didn't. At
that point, the evidence was handled by too many people." As
Gary's counsel ably emphasized during cross-examination,
Arzoomanian's testimony in the two proceedings was inconsistent.
Gary asserts that Arzoomanian therefore committed perjury.
Arzoomanian's testimony in the second trial did differ
in a troubling way from that given in the first trial. His
explanation of the inconsistency is weak because at the first
trial he testified that Gary actually had worn gloves at the time
of arrest -- not that he mistakenly believed at the time of
-22-
arrest that Gary was wearing gloves. However, it is axiomatic
that inconsistent testimony is not per se perjurious. See United
______ ___ ______
States v. Dunnigan, __ U.S. __, 113 S. Ct. 1111, 1116 (1993) ("A
______ ________
witness testifying under oath or affirmation [commits criminal
perjury] if she gives false testimony concerning a material
matter with the willful intent to provide false testimony, rather
______________
than as a result of confusion, mistake or faulty memory.")
(emphasis added). The defendant neither asked the trial court to
make any findings of perjury, nor moved for a mistrial on that
basis. We decline defendant's invitation to make a finding of
willful intent to provide false testimony based solely on an
inconsistency.
Moreover, because Gary's first trial did not result in
a conviction, he was not prejudiced even if Arzoomanian testified
falsely. Cf. Kyles v. Whitley, __ U.S. __, 115 S. Ct. 1555, 1565
___ _____ _______
n.7 (1995) ("[A] conviction obtained by the knowing use of
perjured testimony is fundamentally unfair, and must be set aside
if there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.") (quoting United
______
States v. Agurs, 427 U.S. 97, 103 (1976)). Here, there is
______ _____
neither a conviction nor any evidence that indicates that the
prosecution intentionally used perjured testimony. The first
trial ended with a hung jury, and Gary received a second trial at
which he was fully able to impeach Arzoomanian with his
inconsistent testimony at the first trial. In order to bootstrap
an allegation of prejudice stemming from Arzoomanian's testimony,
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Gary argues that his second trial was barred by the Double
Jeopardy Clause. This suggestion that double jeopardy prohibits
a second trial because of the unknowing presentation of
purportedly perjured testimony by a prosecutor is wholly
unsupported by case law.
Indeed, courts have held that prosecutorial misconduct
must rise to an egregious level for double jeopardy to bar a
retrial. A defendant cannot be retried only "where the
misconduct of the prosecutor is undertaken . . . to prevent an
acquittal that [he] believed at the time was likely to occur in
the absence of his misconduct." United States v. Wallach, 979
_____________ _______
F.2d 912, 916 (2d Cir. 1992) (holding that prosecutorial
misconduct bars retrial after conviction overturned because of
perjured testimony only where this stringent standard met), cert.
_____
denied, __ U.S. __, 113 S. Ct. 2414 (1993); see also Oregon v.
______ _________ ______
Kennedy, 456 U.S. 667, 679 (1982) (retrial after defense moves
_______
for mistrial barred by double jeopardy only where "the conduct
giving rise to the successful motion . . . was intended to
provoke the defendant into moving for a mistrial"); United States
_____________
v. Cartagena-Carrasquillo, No. 94-1235, slip op. at 17-19 (1st
______________________
Cir. Dec. 1, 1995) (when no evidence of prosecutorial misconduct,
defendant's successful motion for mistrial does not trigger
double jeopardy). In this case, there is absolutely no evidence
to buttress a finding of deliberate prosecutorial misconduct,
and, at worst, Arzoomanian's alleged perjury related to a
-24-
collateral matter. Therefore, the Double Jeopardy Clause did not
prohibit Gary's second trial and subsequent conviction.
F. Application of Sentencing Guidelines
F. Application of Sentencing Guidelines
Gary asserts that the trial judge erred in calculating
his sentence under U.S.S.G. 4B1.4. This provision determines
the offense level and criminal history category of persons who
are subject to an enhanced sentence under the ACCA, 18 U.S.C.
924(e). Gary does not contest that he is an armed career
criminal. Rather, he argues that the trial judge incorrectly
applied U.S.S.G. 4B1.4(b)(3)(A) to arrive at an offense level
of 34 when she should have used 4B1.4(b)(1) to arrive at a
lower level.8 We review questions of interpretation under the
____________________
8 U.S.S.G. 4B1.4 provides in pertinent part:
(a) A defendant who is subject to an
enhanced sentence under the
provisions of 18 U.S.C. 924(e) is
an armed career criminal.
(b) The offense level for an armed career
criminal is the greatest of:
(1) the offense level applicable
from Chapters Two and Three; or
(2) the offense level from 4B1.1
(Career Offender) if applicable;
or
(3)(A) 34, if the defendant used or
34
possessed the firearm or
ammunition in connection with
a crime of violence or
controlled substance offense,
as defined in 4B1.2(1), or
if the firearm possessed by
the defendant was of a type
described in 26 U.S.C.
5845(a)[]; or
(B) 33, otherwise.[ ]
33
-25-
guidelines de novo. See United States v. Fiore, 983 F.2d 1, 2
________ ___ ______________ _____
(1st Cir. 1992), cert. denied, __ U.S. __, 113 S. Ct. 1830
_____________
(1993).
U.S.S.G. 4B1.4 instructs the sentencing judge to
select the offense level that is the "greatest" of three
categories. First, there is the offense level applicable from
the underlying offense, which here is U.S.S.G. 2K2.1 dealing
with unlawful possession of a firearm. As Gary had at least two
prior felony convictions of either a crime of violence or a
controlled substance offense, he would receive a minimum offense
level of 24 under this provision. Because Gary "used or
possessed" the firearm "in connection with" another felony
offense (i.e., breaking and entering), which results in an
increase of four levels under U.S.S.G. 2K2.1(b)(5), Gary's
presentence report calculated his base offense level at 28. PSR
14-15. The report then added a three-level victim-related
adjustment for assaulting a police officer pursuant to U.S.S.G.
3A1.2(b) to reach an adjusted offense level of 31. PSR 20.
Gary disputes this interpretation of the guidelines.
This Court recently held that use of a firearm in an assault and
battery warranted the four-level enhancement under U.S.S.G.
2K2.1(b)(5). United States v. Sturtevant, 62 F.3d 33, 34 (1st
_____________ __________
Cir. 1995) (per curiam). Gary's possession of a firearm during
the breaking and entering similarly qualifies as possession in
connection with another felony and would require enhancement to
level 28 were we to find that 2K2.1 controls. Thus, including
-26-
the victim-related adjustment, the correct underlying offense
level "from Chapters Two and Three" of the guidelines was 31.
U.S.S.G. 4B1.4(b)(1).
The second category, which would adopt the offense
level from U.S.S.G. 4B1.1, is not applicable here. U.S.S.G.
4B1.1 does not apply because the "instant offense" (i.e., felon-
in-possession of a firearm) is not a crime of violence. See
___
U.S.S.G. 4B1.2 comment n.2; United States v. Doe, 960 F.2d 221,
_____________ ___
226 (1st Cir. 1992).
The third category directs the court to adopt an
offense level of 34 if the "defendant used or possessed the
firearm or ammunition in connection with a crime of violence" or
33 in all other cases. Because the judge must select the
greatest of the three categories, 33 is the minimum "default"
_______
offense level available under this provision without a downward
adjustment for acceptance of responsibility. See United States
___ _____________
v. George, 56 F.3d 1078, 1086 (9th Cir.), cert. denied, __ U.S.
______ ____________
__, 116 S. Ct. 351 (1995). Gary's arguments for an offense level
any lower than 33 are misplaced.
Finding that Gary possessed the firearm in connection
with a violent crime (i.e., breaking and entering), the trial
judge adopted 34 as the offense level pursuant to
4B1.4(b)(3)(A).9 The court calculated the guidelines sentencing
____________________
9 At Gary's sentencing, the trial court held that "the
possession of a gun must be found to have either been used or to
have facilitated the commission of another offense" and
determined that Gary's possession of a firearm facilitated the
commission of the breaking and enterings.
-27-
range to be 262-327 months (offense level 34, criminal history
category VI) and imposed a sentence of 290 months. Gary contests
the trial court's interpretation of U.S.S.G. 4B1.4(b)(3)(A).
Because a felon-in-possession charge is not itself a violent
crime, see Doe, 960 F.2d at 226, Gary argues that the court
___ ___
should not have imposed an offense level of 34. He also contends
that the breaking and entering charge cannot be used as the
predicate violent crime because there is an insufficient "nexus"
between the firearm and the alleged state offense.
Making a determination under U.S.S.G. 4B1.4(b)(3)(A)
involves a two-step inquiry. First, the court must decide
whether the predicate offense is a violent felony. Second, the
court must consider whether the defendant used or possessed a
firearm in connection with that violent predicate offense.
In making the first inquiry, the court is to employ "a
formal categorical approach" irrespective of the actual factual
circumstances of the underlying offense. Taylor v. United
______ ______
States, 495 U.S. 575, 600 (1990) (holding that court must look to
______
statutory definition of ACCA predicate offenses). To determine
what constitutes a violent crime under U.S.S.G. 4B1.4(b)(3)(A),
the court must turn to the definition provided in 4B1.2(1).
"[That] guideline proceeds to define as a crime of violence any
offense which 'otherwise involves conduct that presents a serious
potential risk of physical injury to another.'" Fiore, 983 F.2d
_____
at 4 (quoting U.S.S.G. 4B1.2(1)(ii)). In that case, we held
that a prior conspiracy conviction for burglary of a commercial
-28-
premise was a violent crime for purposes of the career offender
guideline, U.S.S.G. 4B1.2.10 Fiore, 983 F.2d at 4-5.
_____
Breaking and entering similarly is a violent crime under U.S.S.G.
4B1.4. Cf. United States v. Patterson, 882 F.2d 595, 602 (1st
___ _____________ _________
Cir. 1989) (holding that breaking and entering as defined in
Massachusetts is violent crime because unauthorized entry of
premises of another is a "crucial factor" in determining
applicability of catch-all provision of ACCA), cert. denied, 493
____________
U.S. 1027 (1990).
With regard to the second part of the inquiry, the
trial court found that the defendant possessed a firearm in
connection with the breaking and entering. Here, the court is to
consider the facts to determine whether there is a sufficient
nexus between possession of the firearm and commission of the
underlying offense. See United States v. Samuels, 970 F.2d 1312,
___ _____________ _______
1316 (4th Cir. 1992) (determining whether firearm was used "in
connection with" crime of violence "requires the sentencing court
to consider the factual circumstances surrounding the [18 U.S.C.]
922(g) offense.").
In construing a similar guidelines provision, U.S.S.G.
2K2.1(b)(5), we have held that "the phrase 'in connection with'
should be interpreted broadly and [ ] where a defendant's
____________________
10 We also note that in Fiore, as here, the commercial burglary
_____
occurred in Rhode Island, which defines burglary, in part, as
breaking and entering a shop with the intent to commit robbery or
larceny. 983 F.2d at 4 n.6; see also R.I. Gen. Laws 11-8-4
________
(1994). This offense is a felony punishable by ten years
imprisonment. R.I. Gen. Laws 11-8-4.
-29-
possession of a firearm aids or facilitates the commission of
another offense, the requisite link is present." United States
_____________
v. Thompson, 32 F.3d 1, 7 (1st Cir. 1994). In Sturtevant, 62
________ __________
F.3d at 33-34, we found that a felon who assaulted a victim with
his hands but carried a concealed shotgun used the firearm "in
connection with" the offense of assault and battery. This is
because "the weapon provides an added sense of security and has a
substantial potential for use in the course of the particular
crime in question." Id. at 34; United States v. Brewster, 1 F.3d
___ _____________ ________
51, 54-55 (1st Cir. 1993) (selling drugs and automatic weapon to
undercover agent satisfied "in connection with" requirement of
U.S.S.G. 2K2.1(b)(5)). We see no reason to treat the identical
"in connection with" language in U.S.S.G. 4B1.4(b)(3)(A)
differently from that of 2K2.1(b)(5).
We therefore have no difficulty upholding the trial
court's findings that Gary possessed the firearm "in connection
with" the breaking and entering. Gary and Hopkins broke into at
least two commercial establishments. When arrested, both men
were in possession of firearms, and merchandise from one of the
stores was found in Gary's car. The trial court found that Gary
and Hopkins armed themselves when they decided to commit the
breaking and entering for the purpose of facilitating that crime.
"[W]e review the court's factfinding for clear error, giving due
deference to the court's application of the guidelines to the
facts." Thompson, 32 F.3d at 4 (citing 18 U.S.C. 3742(e)).
________
-30-
There was ample support for the trial judge's findings of fact,
and we affirm Gary's sentence under U.S.S.G. 4B1.4.11
III. CONCLUSION
III. CONCLUSION
__________
For the reasons stated herein, the conviction and
sentence of Raymond J. Gary are AFFIRMED.
AFFIRMED
________
____________________
11 Subsequent to oral argument in this case, the Supreme Court
issued an opinion in Bailey v. United States, __ U.S. __, 64
______ _____________
U.S.L.W. 4039 (Dec. 6, 1995), which defined the word "use" for
purposes of 18 U.S.C. 924(c)(1) (imposing five-year minimum
term of imprisonment upon person who "during and in relation to
any crime of violence or drug trafficking crime . . . uses or
carries a firearm."). The Court held that a conviction under
924(c) requires the government to prove more than mere possession
but rather to show "active employment of the firearm." Bailey,
______
64 U.S.L.W. at 4041 (emphasis omitted). This decision does not,
however, affect Gary's sentence. Bailey does not apply to
______
U.S.S.G. 4B1.4(b)(3)(A), which reaches offenses in which the
defendant either "used or possessed" a firearm. Id.; see also
___ ________
Bailey, 64 U.S.L.W. at 4043 (recognizing that sentencing
______
guidelines may provide enhancements for mere possession of
firearm during other offense).
-31-
