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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-1069 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                         ANTHONY M. SHEA, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>         [Hon. Douglas P. Woodlock, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Aldrich, Senior Circuit Judge, <br> <br>                   and Boudin, Circuit Judge.  <br> <br>                      _____________________ <br> <br>    David H. Mirsky, by appointment of the Court, for appellant. <br>    Ben T. Clements, Assistant United States Attorney, with whom <br>Donald K. Stern, United States Attorney, was on brief for appellee. <br> <br> <br> <br>                       ____________________ <br> <br>                         July 24, 1998 <br>                       ____________________

          TORRUELLA, Chief Judge.  Defendant Anthony M. Shea <br>  appeals his four-count conviction stemming from an attempted <br>  bank robbery involving two other co-defendants, John Schurko <br>  and Nicolas DiMartino.  Schurko had pled guilty prior to trial, <br>  and Shea and DiMartino were tried together and convicted on all <br>  counts before a jury.  Shea was sentenced to 382 months of <br>  imprisonment. <br>           Shea challenges the district court's denial of his <br>  motion to suppress several statements he made after his arrest <br>  and of his motion for discovery of any rewards provided to FBI <br>  agents who were assigned to investigate him.  He also claims <br>  that the district court erred in its jury instructions <br>  regarding 18 U.S.C.  924(c), which prohibits the use and <br>  carrying of firearms during a crime of violence, and contests <br>  the sufficiency of the indictment for the  924(c) count.  <br>  Finally, the defendant argues that the government is precluded <br>  from asserting that he used and carried a certain semiautomatic <br>  weapon which the government had previously attributed to his <br>  co-defendant Schurko.  We affirm. <br>                              I.  BACKGROUND  On an appeal from a criminal conviction, we summarize <br>  the facts in the light most favorable to the jury's verdict.  <br>  See United States v. Gonzlez-Maldonado, 115 F.3d 9, 12 (1st <br>  Cir. 1997). <br>           On August 11, 1995, after several days of planning, <br>  Shea, Schurko, and DiMartino attempted to rob the Wakefield <br>  Savings Bank in Wakefield, Massachusetts.  Their preparations <br>  included an initial stakeout of the bank, the theft of the <br>  robbery and switch cars, and a dry run of the getaway route <br>  from the bank.  At about 4:15 p.m. on August 11, Shea, wearing <br>  a Halloween mask and driving a Jeep Cherokee, with Schurko in <br>  the backseat, approached the bank.  When the Cherokee was about <br>  60 to 65 yards from the bank, several cars containing FBI <br>  agents confronted Shea, who then attempted to flee.  However, <br>  Shea's car was forced into a telephone pole. <br>           Agents removed Shea, who was carrying a police <br>  scanner and was armed with a fully-loaded Smith & Wesson <br>  revolver tucked in his pants, from the driver's seat and <br>  Schurko from the rear passenger seat of the Cherokee.  In the <br>  rear seat, agents recovered a Halloween mask, an Intratec 9- <br>  millimeter semiautomatic assault weapon, which was loaded with <br>  42 rounds of ammunition including one round in the chamber, and <br>  a magazine full of ammunition to which an additional clip full <br>  of ammunition had been attached.  DiMartino, who had remained <br>  waiting in Shea's Ford Bronco at a parking area about a half <br>  mile away from the savings bank, was also apprehended by FBI <br>  agents. <br>           Shea was charged in a three-defendant, four-count <br>  indictment with conspiracy to commit armed bank robbery under <br>  18 U.S.C.  371 ("Count One"); attempted bank robbery under 18 <br>  U.S.C.  2113(a) & 2 ("Count Two"); use and carrying of <br>  firearms during and in relation to a crime of violence, here, <br>  attempted bank robbery, under 18 U.S.C.  924(c)(1) & 2 <br>  ("Count Three"); and felon in possession of ammunition under 18 <br>  U.S.C.  922(g)(1) ("Count Four").  While Schurko pled guilty <br>  prior to trial, Shea and DiMartino were tried together before <br>  a jury.  The jury found Shea guilty of all counts, and he was <br>  sentenced to a total of 382 months of imprisonment. <br>                          II.  DISCUSSION     A.   Post-Arrest Statements <br>           Shea contests the district court's denial of his <br>  pretrial motion requesting that the court suppress the <br>  following post-arrest utterances of Shea, which were later <br>  admitted at trial: <br>           "How did you know I was here?" <br>           "Where did you come from?" <br>           "I should have gone home." <br>           "What do you got me for, a stolen jeep?" <br>           "What am I going to get for bank robbery, forty <br>           years?    I'll be out when I'm seventy." <br>   <br>  The basis for the suppression motion was that these statements <br>  were made while Shea was in custody but prior to his being <br>  advised of his Miranda rights.  We review de novo the district <br>  court's application of Miranda jurisprudence to the challenged <br>  statements.  See United States v. Ventura, 85 F.3d 708, 710 <br>  (1st Cir. 1996).  For the first time on appeal, Shea also <br>  objects to the admission of his responses to questions <br>  regarding his name and whether he had any weapons.  As to these <br>  utterances, "we review for plain error and reverse only if an <br>  'obvious' or 'clear' error exists that affects 'substantial <br>  rights.'"  United States v. Guerrero, 114 F.3d 332, 341 (1st <br>  Cir. 1997). <br>           All of the statements at issue were elicited under <br>  the following circumstances.  As Shea was being arrested, <br>  Special Agent Mark Little asked him his name and whether he had <br>  any weapons or needles.  Shea provided his name and stated that <br>  he only had a scanner.  While he was being arrested, Shea was <br>  also heard saying that he should have gone home and asking how <br>  the agents knew he was there.  After Shea was secured and his <br>  guns seized, he was turned over to Special Agent Todd Richards <br>  to be transported to the FBI office.  As Richards was placing <br>  Shea in the car, Shea stated:  "What am I going to get for bank <br>  robbery, forty years?  I'll be out when I'm seventy."  On route <br>  back to the FBI office, Shea asked the agents, "What do you got <br>  me for, a stolen jeep?" <br>           Law enforcement officers must inform suspects of <br>  their Miranda rights prior to "custodial interrogation."  SeeVentura, 85 F.3d at 710.  It is essentially undisputed that <br>  Shea was in the custody of FBI agents at the time he made the <br>  challenged statements.  Thus, we focus our inquiry on whether <br>  the defendant was subjected to interrogation.  The Supreme <br>  Court has determined that the term "interrogation" refers not <br>  only to direct questioning, "but also to any words or actions <br>  on the part of the police (other than those normally attendant <br>  to arrest and custody) that the police should know are <br>  reasonably likely to elicit an incriminating response from the <br>  suspect."  Rhode Island v. Innis, 446 U.S. 291, 301 (1980).  In <br>  other words, Miranda warnings are required "whenever a person <br>  is subjected to either express questioning or its functional <br>  equivalent."  Id. at 300-301. <br>           We understand Shea's argument to be that the number <br>  of FBI agents and degree of force used to arrest Shea somehow <br>  amounted to the functional equivalent of interrogation.  <br>  Therefore, Shea contends that he should have been informed of <br>  his Miranda rights immediately upon his arrest.  We disagree. <br>           As to the statements at issue in his motion to <br>  suppress, the defendant fails to identify any specific acts or <br>  statements by FBI agents which were "reasonably likely to <br>  elicit an incriminating response from [him]."  Innis, 446 U.S. <br>  at 301.  No evidence suggests that the FBI coerced Shea into <br>  making these statements.  Indeed, the record shows that all of <br>  these statements were spontaneous utterances, which we deem to <br>  be admissible.  See United States v. Rogers, 41 F.3d 25, 31 <br>  (1st Cir. 1994) (affirming admission of statements that were <br>  "voluntary and spontaneous"); United States v. Taylor, 985 F.2d <br>  3, 7 (1st Cir. 1993) (allowing admission of statements made <br>  from conversation "spontaneously initiated" by suspect); United <br>  States v. Voice, 627 F.2d 138, 144 (8th Cir. 1980) (finding no <br>  Miranda violation where officer did "no more than record <br>  defendant's spontaneous responses").  Accordingly, we affirm <br>  the district court's denial of the suppression motion. <br>           We also rule that the district court did not clearly <br>  err in admitting Shea's answers to questions regarding his name <br>  and whether he had any weapons.  The FBI agent's inquiry about <br>  the suspect's name falls squarely within the exception <br>  established in Pennsylvania v. Muiz, 496 U.S. 582 (1990), for <br>  routine booking questions.  See id. at 601 (questions regarding <br>  suspect's name, address, height, weight, eye color, date of <br>  birth and current age did not qualify as custodial <br>  interrogation).  Furthermore, Shea's answer to the agent's <br>  question whether he had any weapons is admissible under the <br>  public safety exception to Miranda established in New York v. <br>  Quarles, 467 U.S. 649, 659 (1984) (finding exception to Mirandafor "questions [by police] necessary to secure their own safety <br>  or the safety of the public"). <br>           Shea responds that the question was not motivated by <br>  a concern for public safety because Agent Little's testimony <br>  suggests that he would have searched the defendant completely <br>  regardless of Shea's answer.  However, we note the context in <br>  which the question was asked: the agent had just apprehended an <br>  individual suspected of attempting to commit a violent crime, <br>  armed bank robbery.  The arresting agent's question would have <br>  facilitated the securing of any weapons on Shea's person <br>  whether or not the agent intended to conduct a search of the <br>  suspect.  Finding no clear error, we affirm the admission of <br>  Shea's response. <br>           B.   Merit Awards to FBI Agents <br>           Shea asserts that the district court erroneously <br>  denied his motion for the discovery of money or rewards <br>  provided to certain FBI agents, who were assigned to <br>  investigate the defendant.  Relying on Brady v. Maryland, 373 <br>  U.S. 83, 87 (1963), Shea contends that since the requested <br>  information was materially exculpatory, the government violated <br>  his Fifth Amendment due process rights by failing to disclose <br>  such information.  We review a district court's denial of a <br>  discovery motion for abuse of discretion.  See United States v. <br>  Phaneuf, 91 F.3d 255, 260 (1st Cir. 1996). <br>           In Brady, the Supreme Court held "that the <br>  suppression by the prosecution of evidence favorable to an <br>  accused upon request violates due process where the evidence is <br>  material either to guilt or to punishment . . . ."  373 U.S. at <br>  87.  Exculpatory evidence is "material" only if "there is a <br>  reasonable probability that, had the evidence been disclosed to <br>  the defense, the result of the proceedings would have been <br>  different."  United States v. Bagley, 473 U.S. 667, 682 (1985).  <br>  In turn, a "reasonable probabilty" is one that is "sufficient <br>  to undermine confidence in the outcome."  Id.  Shea argues that <br>  the requested information would have been relevant to show bias <br>  on the part of the government's FBI witnesses.  Since the <br>  government's case depended almost completely on the testimony <br>  of these witnesses, he asserts that, if this information had <br>  been disclosed, it would have altered the jury's conviction. <br>           The defendant has failed to articulate a theory as to <br>  how the requested information would exculpate him.  The <br>  pretrial discovery motion requests that the district court <br>  "order the government to make available the amounts of money or <br>  other rewards, e.g., promotion, step raises, transfers to <br>  office of choice, provided to the special agents assigned to <br>  the matters pertaining to [him]" (emphasis added).  It is <br>  important to note that Shea's motion does not seek information <br>  regarding awards that were contingent on any agent's testimony.  <br>  In our view, the fact that FBI agents may have received merit <br>  awards for the arrest of Shea would not have changed the <br>  outcome of the trial.  The jury was well aware that law <br>  enforcement officers are paid to investigate crimes and make <br>  arrests.  Absent particularized allegations of agent <br>  misconduct, the most reasonable inference a jury might make <br>  from the existence of a merit award program is that Shea was a <br>  particularly dangerous suspect worthy of special attention. <br>           Shea also argues that the district court's denial of <br>  his discovery motion violated his Sixth Amendment right to <br>  confront witnesses by limiting his ability to uncover witness <br>  bias.  We reject this argument outright.  Even without the <br>  sought-after information, defense counsel could have questioned <br>  testifying agents about this issue.  Moreover, we find no <br>  evidence in the record that the district court foreclosed <br>  cross-examination by the defense on FBI merit awards.  At <br>  trial, Shea's counsel asked one agent, Agent Little, whether <br>  the FBI had "a program whereby agents who make good <br>  [surveillance] pictures or get convictions, get rewarded by <br>  transfers, promotions or cash awards."  The government did not <br>  object to this question.  When the agent testified that he did <br>  not know because he had "never gotten one," defense counsel <br>  responded, "I can see why."  The record reflects that the <br>  government objected to this last retort, and the judge properly <br>  sustained the objection.  We do not adopt Shea's reading of the <br>  trial transcript that the district court, in effect, foreclosed <br>  an inquiry into FBI merit awards by sustaining this objection.  <br>  Therefore, we rule that the district court did not abuse its <br>  discretion in denying Shea' discovery motion. <br>           C.   Pinkerton Theory of Liability <br>           Shea avers that the district court erred in <br>  instructing the jury on Count Three, which charged him with the <br>  use and carrying of firearms during and in relation to a crime <br>  of violence, here, attempted bank robbery, in violation of 18 <br>  U.S.C.  924(c).  We engage in de novo review of an alleged <br>  jury instruction error "involv[ing] the interpretation of the <br>  elements of a statutory offense."  See United States v. <br>  Pitrone, 115 F.3d 1, 4 (1st Cir. 1997).  The district court <br>  instructed the jury as to three alternative theories of <br>  liability on this charge: direct principal liability; aider and <br>  abettor liability; and liability for the foreseeable acts of <br>  co-conspirators in furtherance of the conspiracy, pursuant to <br>  Pinkerton v. United States, 328 U.S. 640 (1946).  In its <br>  Pinkerton charge, the district court instructed the jury that <br>  it could find Shea guilty of violating  924(c), if it found, <br>  inter alia, "that the defendant could reasonably have foreseenthat the crime of using a firearm during or in relation to the <br>  attempted bank robbery might be committed by one or more of his <br>  co-conspirators" (emphasis added). <br>           Shea asserts that the Pinkerton instruction <br>  improperly permitted the jury to convict him on the  924(c) <br>  charge without satisfying the more stringent knowledge <br>  requirement for  924(c) aider and abettor liability.  Indeed, <br>  conviction under an aider and abettor theory of liability calls <br>  for a higher mens rea requirement than that required for <br>  Pinkerton liability.  In Pinkerton, the Supreme Court ruled <br>  that a co-conspirator may be held vicariously liable for the <br>  reasonably foreseeable substantive offenses committed by other <br>  co-conspirators in furtherance of the conspiracy.  See 328 U.S. <br>  at 647-48.  In contrast, for aider and abettor liability to <br>  attach, the government must prove that Shea knew to a <br>  "practical certainty" that the principal would be using a <br>  weapon during the commission of the armed bank robbery.  United <br>  States v. Spinney, 65 F.3d 231, 239 (1st Cir. 1995).  However, <br>  Shea's assertion that the more strict knowledge requirement for <br>  aider and abettor liability somehow negates the lower mens rea <br>  requirement for an alternative Pinkerton charge has no support <br>  in case law or common sense. <br>           Shea's argument relies primarily on this court's <br>  decision in Spinney.  We find Spinney, which reversed a <br>  defendant's conviction on a  924(c) charge because the <br>  government failed to establish that the defendant knew to a <br>  "practical certainty" that the principal would be using a <br>  weapon during a bank robbery, see id. at 239, to be inapposite.  <br>  In Spinney, the defendant, Jeffrey Spinney, was indicted for <br>  conspiracy to commit armed bank robbery, aiding and abetting an <br>  armed bank robbery, and aiding and abetting the use of a <br>  firearm during and in relation to a crime of violence.  <br>  However, because the conspiracy count was dismissed, the <br>  district court never issued a Pinkerton instruction for the  <br>  924(c) offense.  Thus, in Spinney, we simply stated the <br>  requisite knowledge requirement for an aider and abettor theory <br>  of liability without addressing the applicability of a <br>  Pinkerton instruction to a  924(c) violation. <br>           We agree with a number of our sister circuits that <br>  Pinkerton liability attaches to the use-or-carrying-of-a- <br>  firearm offense proscribed in  924(c).  See, e.g., United <br>  States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998); United <br>  States v. Washington, 106 F.3d 983, 1011 (D.C. Cir. 1997); <br>  United States v. Masotto, 73 F.3d 1233, 1240 (2d Cir. 1996); <br>  United States v. Myers, 102 F.3d 227, 237 (6th Cir. 1996), <br>  cert. denied, __ U.S. __, 117 S. Ct. 1720 (1997); United Statesv. Wacker, 72 F.3d 1453, 1464 (10th Cir. 1995).  We cannot <br>  "attribute to Congress an intent to punish other [violent <br>  criminal] activity where a gun is carried while exempting <br>  conspiracy, a situation that is traditionally considered more <br>  dangerous."  United States v. Daz, 864 F.2d 544, 548 (7th Cir. <br>  1988). <br>           While this court has yet to address a direct <br>  challenge to the applicability of a Pinkerton instruction to a <br>   924(c) charge, we assumed its applicability in United Statesv. DeMasi, 40 F.3d 1306, 1319-20 (1st Cir. 1994).  In that <br>  case, the district court instructed the jury on Pinkertonliability for a  924(c) charge stemming from an attempted <br>  robbery of an armored truck, but failed to include the <br>  "reasonably foreseeable" qualification to the instruction.  <br>  This court found that "the use of firearms during and in <br>  relation to the attempted robbery . . . was part and parcel to <br>  the object of the conspiracy itself."  DeMasi, 40 F.3d at 1319.  <br>  Accordingly, the court held that "no rational jury could have <br>  found that [the defendant] conspired to rob the Brink's truck <br>  . . . without also finding that the use of firearms in that <br>  robbery would be reasonably foreseeable."  Id. at 1319-20.  <br>  Thus, in DeMasi, this circuit sustained a  924(c) conviction <br>  under a Pinkerton theory of liability.  Here, we make explicit <br>  our view that a jury may be instructed on Pinkerton liability <br>  in connection with a charged violation of  924(c) either as <br>  the sole or as an alternative theory of liability. <br>           D.   Knowledge of Features of Assault Weapon <br>           Shea alleges that the district court erred in failing <br>  to instruct the jury that he must have knowledge of the <br>  features of the Intratec 9-millimeter weapon which brought it <br>  within the scope of the assault weapons provision of  <br>  924(c)(1).  Section 924(c)(1) provides in pertinent part: <br>           Whoever, during and in relation to any crime <br>           of violence . . . uses or carries a firearm, <br>           shall . . . be sentenced to imprisonment for <br>           five years, and if the firearm is a short- <br>           barreled rifle, short-barreled shotgun, orsemiautomatic assault weapon, to <br>           imprisonment for ten years, and if the <br>           firearm is a machinegun, or a destructive <br>           device, or is equipped with a firearm <br>           silencer or muffler, to imprisonment for <br>           thirty years. <br>   <br>  18 U.S.C.  924(c)(1) (emphasis added).  The defendant argues <br>  that the semiautomatic assault weapon clause of this section is <br>  a separate offense, which requires the jury to make a finding <br>  that Shea knew of the gun's features.  Shea presents a question <br>  of first impression for this circuit. <br>           We rule that the assault weapon provision is not an <br>  element of the  924(c)(1) offense, but instead, a sentencing <br>  enhancement.  "When deciding how a particular statutory <br>  allusion should be construed, an inquiring court must mull the <br>  language and structure of the statute, and, when necessary, its <br>  legislative history."  United States v. Rivera-Gmez, 67 F.3d <br>  993, 1000 (1st Cir. 1995) (finding "death results" provision of <br>  18 U.S.C.  2119 (3) to be sentence enhancer rather than <br>  separate offense).  The language and structure of  924(c)(1) <br>  suggest that Congress intended the assault weapon clause to <br>  serve as a sentence enhancer.  The section begins by <br>  criminalizing the use and carrying of a firearm during the <br>  commission of a predicate offense, a crime of violence, and <br>  establishes a base sentence of 5 years for a violation.  The <br>  weapons clauses that follow, including the assault weapon <br>  provision, are not structurally independent, but rather are <br>  integrated into the main use-and-carrying offense.  "Ripped <br>  from their textual moorings, [these clauses] would be little <br>  more than gibberish . . . ."  Rivera-Gmez, 67 F.3d at 1000. <br>           Traditional indicia that a provision is a sentence <br>  enhancer include an explicit reference to a prior conviction <br>  under the statutory section at issue; special sentencing <br>  procedures; a penalty which is a multiplier of the sentence for <br>  the underlying crime; or a title denoting it as a sentence <br>  enhancer.  See United States v. Rumney, 867 F.2d 714, 718 (1st <br>  Cir. 1989).  The 10-year sentence for using and carrying an <br>  assault weapon (as well as the 30-year sentence under the <br>  machinegun provision) are multipliers of the 5-year base <br>  sentence, providing further evidence of congressional intent to <br>  enhance sentences under certain aggravating circumstances. <br>           The statute's legislative history confirms our <br>  interpretation of the section.  Congress initially created  <br>  924(c) without distinguishing among types of firearms.  SeeUnited States v. Branch, 91 F.3d 699, 739 (5th Cir. 1996) <br>  (citing Gun Control Act of 1968, Pub. L. No. 90-618,  102, 82 <br>  Stat. 1213 (1968) (prohibiting use or carrying of "firearm" <br>  during commission of "any felony")).  Then, in 1986, Congress <br>  added the machinegun clause to the statute.  See Firearms <br>  Owners' Protection Act, Pub. L. No. 99-308,  104, 100 Stat. <br>  449, 456 (1986).  "Noticeably absent from both the House Report <br>  and floor debates [accompanying the 1986 Act] was any <br>  discussion suggesting the creation of a new offense."  Branch, <br>  91 F.3d at 739.  In 1990, Congress appended the short-barreled <br>  rifle, short-barreled shotgun and destructive device provisions <br>  to the section, again without evincing an intent to create new <br>  offenses for these weapons.  See Crime Control Act of 1990, <br>  Pub. L. No. 101-647,  1101, 104 Stat. 4789, 4829 (1990).  <br>  Finally, the semiautomatic assault weapon clause was added in <br>  1994 to the list of weapons in  924(c)(1) without creating a <br>  separate section.  See Violent Crime Control and Law <br>  Enforcement Act of 1994, Pub. L. No. 103-322,  110102(c)(2), <br>  as amended, Pub. L. No. 104-294,  603 (p)(1), 108 Stat. 2015 <br>  (1994). <br>           Shea asserts that Staples v. United States, 511 U.S. <br>  600 (1994), in which the Supreme Court held that the government <br>  needs to prove knowledge of the type of firearm for a <br>  conviction under 26 U.S.C.  5861(d), compels us to make a <br>  similar determination for  924(c)(1).  However, we can easily <br>  distinguish the situation in Staples from the present case <br>  because, unlike  924(c)(1), the statute in Staples prohibited <br>  possession of certain types of firearms but was silent as to <br>  the mental state required for the commission of the offense.  <br>  As the Eleventh Circuit noted in United States v. Brantley, 68 <br>  F.3d 1283, 1289 (11th Cir. 1995), the Staples court wished to <br>  avoid dispensing with a mens rea requirement "where doing so <br>  would 'criminalize a broad range of apparently innocent <br>  conduct.'" Id. at 1289 (quoting Staples, 511 U.S. at 609).  <br>  Such concerns are absent here because "the  924(c) defendant <br>  whose sentence is enhanced based on the type of weapon he <br>  carried has demonstrated a 'vicious will' by committing the <br>  principal offense."  Brantley, 68 F.3d at 1290.  Accordingly, <br>  we reject Shea's argument that a conviction under the statute <br>  required the government to prove knowledge of the features of <br>  the Intratec 9-millimeter weapon. <br>           Shea also argues that the district court's imposition <br>  of a 10-year sentence for the  924(c) violation constituted a <br>  constructive amendment to the original indictment because the <br>  indictment failed to charge the assault weapon in Count Three <br>  either directly or by incorporation.  This argument rests <br>  entirely upon the assumption that the assault weapon clause <br>  creates a separate offense.  Having determined that the clause <br>  acts as a sentence enhancer, see supra, we reject Shea's <br>  constructive amendment claim without further comment. <br>           E.   Judicial Estoppel <br>           Shea alleges that the government is judicially <br>  estopped from asserting that he used or carried the Intratec 9- <br>  millimeter weapon because during the detention hearing of his <br>  co-defendant Schurko, the government linked the gun to Schurko <br>  rather than to Shea.  At Schurko's detention hearing, the <br>  government stated in closing argument that, "[t]he notion . . <br>  . that somehow that gun should be linked to Shea, who was in <br>  the front seat, rather than [Schurko], who was sitting on it <br>  when he was arrested, is simply absurd."  As this court <br>  observed in United States v. Kattar, 840 F.2d 118 (1st Cir. <br>  1988), <br>           The doctrine of judicial estoppel . . . <br>           prevents a party from asserting a position <br>           contrary to the position taken by the <br>           party in an earlier proceeding.  In this <br>           circuit, the doctrine is only applied when <br>           a litigant is "'playing fast and loose <br>           with the courts.'" <br>   <br>  Id. at 129-30 n.7 (citations omitted).  We choose not to apply <br>  this "obscure doctrine," id. at 130 n.7, here.  The <br>  government's closing argument at Schurko's detention hearing is <br>  not inconsistent with its position in the prosecution of Shea <br>  where it pursued accomplice as well as principal theories of <br>  liability for the use and carrying of the Intratec 9-millimeter <br>  weapon.  Therefore, we see no ground for reversal on this <br>  point. <br>                            III.  CONCLUSION <br>                                              For the foregoing reasons, we affirm the defendant's <br>  conviction. <br>  </pre>

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