
USCA1 Opinion

	




          March 27, 1996    UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                    _____________                                    _____________          No.  95-1105                                    UNITED STATES,                                      Appellee,                                          v.                                 AEDAN C. MCCARTHY,                                 Defendant, Appellant.          No. 95-1106                                    UNITED STATES,                                      Appellee,                                          v.                                JEFFREY SCOTT HUNTER,                                Defendant, Appellant.                                       ________                                     ERRATA SHEET               It is ordered  that pages  6-7 of the  opinion, released  on          February  26,  1996,  are   modified  to  include  the  following          underlined  language and  the  footnotes shall  be renumbered  as          indicated:                    Following  his  release, Hunter  remained the                    focus of the Franklin  robbery investigation.                    The  investigation   involved  a  cooperative                    effort between the Connecticut  State Police,                    the Federal Bureau of  Investigation ("FBI"),                    and, ultimately, law enforcement officials in                    Alabama and Maine.   During the course of the                                         ________________________                    investigation,   James   Hall2                                                    revealed   to                    _____________________________________________                    investigators that Hunter's friend "John" had                    _____________________________________________                    recently   replaced   his  Alabama   driver's                    _____________________________________________                    license  with a  Connecticut  license in  the                    _____________________________________________                    name   of  John  E.   Perry.    Investigators                    ____________________________                                        ____________________               2Investigators also  learned that James Hall  is the brother          of  Lance Hall,  the person  who rented  the Sunbird  for Hunter.          Neither James  nor Lance Hall were  involved, in any way,  in the          Franklin robbery.                    subsequently  learned that  the real  John E.                    ____________                    Perry had  lost his Alabama  license prior to                    the  Franklin bank robbery  and that McCarthy                    had  used  the alias  John  Perry in  Florida                    following an arrest  there.3   The real  John                    E.  Perry, who  lived in  Alabama, identified                                                       __________                    McCarthy as James Hardiman, an individual who                    _____________________________________________                    had  been  involved  with  his  former  wife.                    _____________________________________________                    Investigators  also  learned  that, in  1991,                    Hunter and McCarthy  had spent time  together                    as cellmates in a Connecticut state prison.                                         ____________________               3James Hall  initially told investigators  that a photograph                ___________________________________________________________          of  the real  John  Perry resembled  the  individual he  knew  as          _________________________________________________________________          Hunter's  friend "John."   Following McCarthy's  arrest, however,          _________________________________________________________________          James Hall identified McCarthy as Hunter's friend "John."          _________________________________________________________                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1105                                    UNITED STATES,                                      Appellee,                                          v.                                  AEDAN C. MCCARTHY,                                Defendant, Appellant,        No. 95-1106                                    UNITED STATES,                                      Appellee,                                          v.                                JEFFREY SCOTT HUNTER,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Brian L.  Champion with whom Friedman  & Babcock was  on brief for            __________________           ___________________        appellant Aedan C. McCarthy.            Henry W. Griffin for appellant Jeffrey Scott Hunter.            ________________            Margaret  D. McGaughey,  Assistant  United States  Attorney,  with            ______________________        whom  Jay  P.  McCloskey,  United States  Attorney,  and  Jonathan  R.              __________________                                  ____________        Chapman, Assistant United States Attorney, were on brief for appellee.        _______                                 ____________________                                  February 26, 1996                                 ____________________                      STAHL, Circuit Judge.  Following a three-day trial,                      STAHL, Circuit Judge.                             _____________            a jury convicted defendants  Aedan McCarthy and Jeffrey Scott            Hunter  of  various charges  stemming from  a series  of bank            robberies  in Alabama,  Connecticut  and Maine.   On  appeal,            McCarthy and Hunter challenge the district court's refusal to            grant their respective  suppression motions.   In particular,            Hunter challenges  the district  court's failure to  suppress            evidence  produced as  the  result of  an investigatory  stop            following the Connecticut robbery.   McCarthy and Hunter also            raise several  challenges to their sentences.   After careful            review, we affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      In reviewing a district  court's denial of  motions            to suppress, we  recite the  facts as found  by the  district            court  to the extent that they derive support from the record            and are not clearly  erroneous.  See, e.g., United  States v.                                             ___  ____  ______________            Sealey,  30  F.3d  7, 8  (1st  Cir.  1994).   Where  specific            ______            findings  are lacking, we view  the record in  the light most            favorable  to  the ruling,  making  all reasonably  supported            inferences.  See United  States v. Kimball, 25 F.3d 1, 3 (1st                         ___ ______________    _______            Cir.  1994); United States v. Sanchez, 943 F.2d 110, 112 (1st                         _____________    _______            Cir. 1991).            A.  Hunter's Connecticut Detention            __________________________________                      On July 6, 1992, around 1:45 p.m., two men robbed a            bank  in Franklin,  Connecticut.   Each  man wore  a plastic,            Halloween-type mask,  covering his entire face,  and each was                                         -3-                                          3            armed,  one with a pump-action  shotgun and the  other with a            semi-automatic pistol.  The man carrying the shotgun stood in            the bank's  lobby, issuing commands, while  the other vaulted            the  teller's counter and collected the money.  They fled the            bank in a light-blue GMC Jimmy truck.                      A short  time later,  the Connecticut  State Police            located the truck,  abandoned in an industrial park less than            a mile from the  bank.  Witnesses reported that a red Pontiac            Sunbird bearing Rhode Island license plates recently had been            parked near the spot where the abandoned GMC Jimmy was found.            Subsequently,  the police  issued an updated  radio bulletin,            indicating  that the  two suspects  were now  believed to  be            travelling in the red Pontiac Sunbird.                      About  2:30 p.m.,  Officer  Arthur  Richard of  the            Norwich  Police  Department  spotted  a red  Pontiac  Sunbird            bearing Rhode Island license plates at a gas station, not far            from Franklin.   Officer Richard reported  the sighting, and,            after the car  left the  station, stopped the  vehicle as  it            prepared  to enter  an interstate  highway.   Officer Richard            ordered  the driver out of  the Sunbird, patted  him down for            weapons and  directed him to take  a seat in the  back of his            police  cruiser.   The  police cruiser's  internal rear  door            handles  were not functional and  a plastic spit  guard and a            wire cage  separated  its  rear  and front  seats.    Officer            Richard did not handcuff the driver.                                         -4-                                          4                      In response to  Officer Richard's questioning,  the            driver identified himself  as Hunter.  Officer Richard  ran a            registration check  on the  Sunbird and  learned that  it was            registered to  a rental  agency  at a  Rhode Island  airport.            Hunter told Richard  that a friend had  rented the automobile            for  him because  his  own car  was  under repair.    Hunter,            however, refused to identify the friend.                      Within  minutes,  several  other  police  officers,            including Connecticut  State  Troopers Jerry  Hall and  Louis            Heller, arrived on the  scene.  Trooper Hall spoke  to Hunter            through  the open rear door of Richard's cruiser and detected            alcohol on Hunter's  breath.  Hunter admitted  drinking a few            beers with a friend, but declined to identify the friend.  At            Hall's request, Hunter  took a field sobriety  test, which he            passed.                      About 2:43 p.m., Trooper Hall advised Hunter of his            Miranda  rights and informed  him that,  although he  was not            _______            under   arrest,  he  was  being  detained  for  investigative            purposes.  Hunter  stated that he  understood his rights  and            waived them,  but nonetheless  declined to say  where he  had            been  since 1:00 p.m., stating  only that he  had been with a            "Born-Again-Christian" friend.   At some point, Trooper  Hall            explained that  the officers  were detaining him  because his            Pontiac  Sunbird matched  identically  the description  of  a            vehicle involved in  a bank robbery that had occurred earlier                                         -5-                                          5            that  day.    Trooper   Hall  continued  to  question  Hunter            intermittently for  about  forty-five minutes.   During  that            time,  other officers  drove a  teller from  the bank  by the            cruiser in an unsuccessful attempt to identify Hunter as  one            of  the  robbers.    In addition,  Trooper  Hall  took  three            Polaroid photographs of Hunter.                      Meanwhile, Trooper Heller  learned that the  agency            registered as the owner of the Pontiac Sunbird had rented the            vehicle to Lance Hall,  a black male, who had  listed Hunter,            who  is  white,  on the  rental  agreement  as a  co-driver.1            After receiving this information, Heller went to a nearby bar            and  questioned patrons  in an  attempt to  determine whether            Hunter  and another  individual  had  stopped there  earlier.            Upon  returning to  the police  cruiser in  which Hunter  was            still being  detained, Trooper  Heller asked Hunter  where he            had  been prior to the stop.   Hunter replied that he had not            been anywhere near Franklin, but instead had spent the day at            a  friend's place in the woods.  Hunter, however, claimed not            to  remember  his  friend's  name  nor where  the  place  was            located.  On  the basis  of the information  he had  obtained            from the rental car agency,  Trooper Heller then asked Hunter            if his friend was  black.  With this question,  Hunter became                                            ____________________            1.  Trooper  Heller  obtained Lance  Hall's  driver's license            number from  the  rental  agency.   He  obtained  a  physical            description of Hall  after requesting a check on  the license            with the Connecticut State Police.                                         -6-                                          6            agitated,  swore  at  Heller,  and, while  gesturing  in  one            general  direction, told him to  find out for  himself.  This            occurred about 3:45  p.m., approximately seventy-five minutes            after Officer Richard initially stopped Hunter.                      Trooper Heller  knew the area well  and could think            of only one  black male  living in the  general direction  in            which  Hunter had  gestured.    Consequently, Trooper  Heller            drove to that person's house and inquired  whether Hunter had            visited earlier that day.  The black male living at the house            identified himself as James  Hall and stated that  Hunter had            been there with another  man named John.  According  to James            Hall, Hunter and John had borrowed James Hall's truck earlier            in the day and had  later returned to Hall's house  to change            their  clothes.    After   interviewing  James  Hall,  Heller            returned  to where  Hunter  was being  detained and,  at 4:43            p.m., Hunter was released.              B.  The Ensuing Investigation            _____________________________                      Following his release, Hunter remained the focus of            the   Franklin  robbery  investigation.    The  investigation            involved a  cooperative effort between the  Connecticut State            Police,  the Federal  Bureau of  Investigation ("FBI"),  and,            ultimately, law enforcement  officials in Alabama and  Maine.            During the course of  the investigation, James Hall2 revealed                                            ____________________            2.  Investigators also learned that James Hall is the brother            of  Lance Hall, the person who rented the Sunbird for Hunter.            Neither  James nor Lance Hall  were involved, in  any way, in                                         -7-                                          7            to  investigators  that Hunter's  friend "John"  had recently            replaced his  Alabama  driver's license  with  a  Connecticut            license  in  the  name  of  John  E.  Perry.    Investigators            subsequently learned that the real John E. Perry had lost his            Alabama license prior  to the Franklin bank  robbery and that            McCarthy  had used the alias John  Perry in Florida following            an  arrest there.3   The  real  John E.  Perry, who  lived in            Alabama, identified McCarthy as James Hardiman, an individual            who had  been involved with  his former wife.   Investigators            also learned that,  in 1991,  Hunter and  McCarthy had  spent            time together as cellmates in a Connecticut state prison.                      As   the   investigation  progressed,   Connecticut            authorities  apprised   FBI  agents  in  Alabama,   who  were            investigating a series of  similar Alabama bank robberies, of            the events surrounding  the Franklin  robbery.   Accordingly,            McCarthy and Hunter became suspects in the Alabama robberies.            In early 1993, Alabama FBI Agent Marshall Ridlehoover learned            that McCarthy and Hunter  might be living in Chilton  County,            Alabama.    Agent  Ridlehoover  alerted  the  Chilton  County            Sheriff's  Department that  the two  men  were suspects  in a            series of bank robberies in  Alabama and Connecticut and sent                                            ____________________            the Franklin robbery.            3.  James Hall initially told investigators that a photograph            of  the real John Perry  resembled the individual  he knew as            Hunter's  friend   "John".    Following   McCarthy's  arrest,            however, James  Hall identified McCarthy  as Hunter's  friend            "John".                                         -8-                                          8            the   department  photographs   of   McCarthy   and   Hunter.            Initially,  Ridlehoover  told  the  Chilton  County Sheriff's            Department that the FBI wanted to have the two men kept under            surveillance.      Subsequently,  Ridlehoover   informed  the            Sheriff's  Department  that  a  federal  arrest  warrant  for            unlawful flight from prosecution had been issued for Hunter.            C.  Alabama Arrests of Hunter and McCarthy            __________________________________________                      While driving to work on  the morning of April  23,            1993,  Deputy Wayne  Fulmer,  assistant chief  deputy of  the            Chilton County  Sheriff's Department, noticed  a pickup truck            bearing  Maine license plates.  Because the presence of Maine            plates in Chilton County struck  Fulmer as rather unusual, he            ran a registration check on the truck and discovered that the            truck was registered to a John E. Perry.  Fulmer knew at this            time that  FBI investigators  were looking for  an individual            using the alias  John E. Perry in connection with a series of            bank robberies in Connecticut and Alabama.                        Later  that morning,  a  woman at  the local  power            company, who had been shown a  photograph of Hunter, reported            that a person  resembling Hunter had requested that  power be            turned  on at  his  trailer.   After  receiving this  report,            Fulmer brought a copy of Hunter's photograph to the woman and            asked  her to  notify  the Sheriff's  Department  if the  man            returned.   A short time  later that day,  the woman reported            that Hunter had  returned.  Upon  learning this, Fulmer  left                                         -9-                                          9            for the power company and requested  several back-up units to            meet him  there.   On the  way, Fulmer alerted  by radio  the            other officers  responding to  the scene that  an outstanding            federal  warrant  existed for  Hunter's  arrest.   The  first            officer to arrive at the  power company identified himself to            Hunter and asked to speak to him.  In response, Hunter turned            and ran.  The officer radioed that the suspect was fleeing on            foot and then gave chase.                        Several  officers  eventually  caught and  arrested            Hunter.    A  search  incident  to the  arrest  disclosed  an            envelope containing $6039  in cash on Hunter's person.   Over            two weeks later,  on May 11, 1993,  Agent Ridlehoover matched            the serial numbers of twenty bills taken from the envelope to            bills stolen from the Casco Northern Bank in Falmouth, Maine,            on April 12, 1993.                      While  Hunter was fleeing  on foot,  Deputy Fulmer,            who  had yet  to reach  the power  company, spotted  the same            pickup truck, which he  had seen earlier in the  day, heading            away  from  the power  company.   Fulmer directed  an Alabama            state trooper who was  following him to turn around  and stop            the truck.  At  this point, Fulmer did not  know the identity            of either the person driving the  truck or the person who had            fled  on foot.  After  stopping the truck,  the state trooper            asked  the driver  for  identification.   The  driver of  the            truck, McCarthy, falsely identified  himself as John E. Perry                                         -10-                                          10            and gave the  trooper a Maine  driver's license bearing  that            name.                        Subsequently about  12:15 p.m., McCarthy  was taken            into  custody   and  transported   to   the  Chilton   County            Courthouse.  McCarthy was searched and approximately $2000 in            cash  was  found  on  his  person.    Shortly after  stopping            McCarthy,  an  official  from the  Chilton  County  Sheriff's            Department  notified Connecticut officials  that McCarthy was            in  custody.   The Connecticut  officials requested  that the            Chilton County Sheriff's Department continue to hold McCarthy            while they  attempted to  secure an arrest  warrant based  on            McCarthy's  alleged participation  in  the Franklin  robbery.            Sometime after midnight, a  Connecticut Superior Judge signed            an arrest warrant  for McCarthy for his  participation in the            Franklin robbery.4              D.   Search and  Seizure of  McCarthy's Suitcases, Truck  and            _____________________________________________________________                      Storage Unit                      ____________                      On  the  evening  of April  23,  1993,  the  day of            McCarthy's  arrest  in  Alabama,  Deputy  Fulmer  received  a            telephone  call from  Chilton County  resident Gene  Ellison.            Ellison told Fulmer that McCarthy and Hunter had been staying                                            ____________________            4.  Several months later, the Connecticut prosecution against            McCarthy  was  dismissed   without  prejudice  following  the            discovery that the affidavit  on which the Connecticut arrest            warrant  was based included  an incorrect  factual statement.            Because the disposition of this appeal does not depend on the            validity of the Connecticut arrest warrant, we do not discuss            it further.                                         -11-                                          11            with  his  neighbor, Joe  Henderson,  and  that McCarthy  and            Hunter had left some items in Henderson's trailer that Fulmer            should  see.   Deputy Fulmer  agreed to  come by  Henderson's            trailer.   When  he arrived, Fulmer  found a  maroon suitcase            laying open on  Henderson's kitchen table.   An AK-47 assault            rifle, a pistol, extra clips and a bullet-proof vest sat atop            the suitcase in plain  view.  Henderson told Fulmer  that the            suitcase and its contents belonged to McCarthy  and asked him            to take possession of them.                      Henderson further explained  that he had  permitted            McCarthy and Hunter to stay with him for the past six days in            return  for $40  rent.   Henderson knew  McCarthy and  Hunter            because the  two men  had  previously rented  a trailer  from            Henderson's  landlord,  J.B.  Ellison.   While  staying  with            Henderson,  McCarthy and Hunter had  slept on a  couch and an            easy  chair in  Henderson's living  room and  had  kept their            belongings in a back bedroom that Henderson used for storage.            On Thursday,  April 22, the day before the arrests, Henderson            had told the two  men that he was  expecting company for  the            upcoming weekend and  that they  would have to  leave.   When            Henderson  left  for work  on  the  morning of  the  arrests,            McCarthy  and  Hunter  were  preparing  to  move  out  of the            trailer.                      When Henderson  returned home that  afternoon, Gene            Ellison told him  that the police  had arrested McCarthy  and                                         -12-                                          12            Hunter.  Henderson then  decided to check his trailer  to see            if  McCarthy and  Hunter had  left anything  behind.   In the            storage  room, he  found two  suitcases, the  maroon suitcase            that  was  closed  and  locked,  and  an  American  Tourister            suitcase  that was laying open  with clothes piled  on top of            it.  Henderson attempted  to move the maroon suitcase  out of            the room to a storage shed behind his trailer but was  unable            to do so because the  suitcase was too heavy.  He  asked Gene            Ellison to help  him.   Ellison moved the  suitcase into  the            other room and cut the  lock off of it  in order to find  out            why it  weighed so  much.   After Ellison  cut off  the lock,            Henderson opened the suitcase and discovered the weapons, the            bullet-proof  vest  and  other   items.    Some  time  later,            Henderson  decided  he  should  turn  the  suitcase  and  its            contents over  to the police so he  asked Ellison to call the            sheriff's department.                      During  Deputy Fulmer's  visit  on the  evening  of            April 23, Henderson failed  to tell him about the  additional            American   Tourister   suitcase  Henderson   had  discovered.            Several  days later,  however,  Henderson told  an FBI  agent            about it during an interview.  Later, at Henderson's request,            Fulmer  and  FBI agent  Rich  Schott took  possession  of the            suitcase.     Agent  Ridlehoover   inventoried  the  American            Tourister on May 1, 1993, pursuant to standard  FBI practice.            No warrant was obtained for the suitcase.                                         -13-                                          13                      Following  McCarthy's Alabama arrest, a warrant was            obtained on  April  28, 1993,  to  search his  pickup  truck.            Accordingly,  investigators  searched  the truck,  finding  a            receipt  for a  storage unit  located in  Scarborough, Maine.            Subsequently, on  May 12, 1993, FBI  investigators obtained a            warrant to search  the storage  unit and its  contents.   The            ensuing  search revealed  a  footlocker  containing  numerous            incriminating items with possible connections  to the robbery            of  the Casco  Northern  Bank.   The  footlocker belonged  to            McCarthy,  and  McCarthy, using  the  alias  John Perry,  had            rented the storage unit.            E.  Prior Proceedings            _____________________                      Prior to  trial, Hunter moved to  suppress evidence            arising from  the Connecticut  stop and the  Alabama arrests.            With  respect  to  the  Connecticut stop,  Hunter  sought  to            suppress the statements  and gesture he made during the first            seventy-five  minutes of  the  stop that  ultimately led  the            police to  James Hall.   McCarthy moved to  suppress evidence            arising from his Alabama  arrest and the searches of  the two            suitcases,  his pickup truck and  the Maine storage  unit.  A            magistrate judge  held a  two-day evidentiary hearing  on the            motions  and, subsequently,  issued  a  recommended  decision            denying  them both.   After  a de  novo review,  the district                                           __  ____            court denied  the motions, adopting substantially  all of the            magistrate judge's recommended findings.                                           -14-                                          14                      At  the  ensuing trial,  McCarthy  and  Hunter were            tried  together  before a  jury  on  a five-count  indictment            alleging various charges arising from  a series of three bank            robberies  in  Connecticut, Alabama  and  Maine.5   The  jury            found McCarthy  and Hunter guilty of  all charges, convicting            the  two  men  on Count  One  of  conspiring  to commit  bank            robberies in  Connecticut, Alabama and Maine  in violation of            18 U.S.C.   371, on Count Two of committing the Maine robbery            of  the  Casco Northern  bank in  violation  of 18  U.S.C.               2113(a), 2113(d)  and 18 U.S.C.    2, and  on Count Three  of            knowingly  using  and  carrying  firearms  during  the  Casco            robbery in  violation of 18  U.S.C.   924(c).   The jury also            convicted  McCarthy on  Count Four of  being an  armed career            criminal in  violation of 18 U.S.C.     922(g)(1), 924(e)(1),            and Hunter  on Count Five  of being a  felon-in-possession in            violation of 18  U.S.C.    922(g)(1), 924(a)(2) and 18 U.S.C.              2.  Following trial, the district  court sentenced McCarthy            to 387 months imprisonment.6   The court sentenced Hunter  to                                            ____________________            5.  Specifically,  Count One  of indictment  charged McCarthy            and Hunter with conspiring  to rob the Franklin bank  on July            6,  1992, the Peoples Bank in Woodstock, Alabama, on November            13,  1992, and the Casco Northern bank in Falmouth, Maine, on            April 12, 1993.            6.  McCarthy  was sentenced  to 327 months  on Count  Two for            committing  the Casco  Northern  bank robbery,  to be  served            concurrently  to  a  60-month   sentence  on  Count  One  for            conspiracy, and a 180-month sentence on  Count Four for being            an  armed  career  criminal.    On  Count  Three,  the  court            sentenced  McCarthy  to  the  mandatory  60-month consecutive            sentence on the   924(c) firearm violation.                                         -15-                                          15            270  months imprisonment  to be  served consecutively  to his            Connecticut state sentence for violation of probation.7                                          II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                      On  appeal, Hunter challenges  the district court's            denial  of  his  suppression   motion,  contending  that  his            Connecticut detention following the  Franklin robbery and his            later  Alabama   arrest   violated  the   Fourth   Amendment.            Similarly, McCarthy challenges the denial of  his suppression            motion,  taking issue  with the  district court's  refusal to            find error in his Alabama arrest and the subsequent search of            his  two suitcases,  pickup  truck and  storage  unit.   Both            defendants  also  raise  several  issues  relating  to  their            respective sentences.  We address each argument in turn.            A.  The Suppression Motions            ___________________________                      Our review of a  district court's decision to grant            or  deny a suppression motion  is plenary.   United States v.                                                         _____________            DeMasi, 40 F.3d 1306, 1311 (1st Cir. 1994), cert. denied, 115            ______                                      _____ ______            S. Ct. 947 (1995).  "We defer, however, to a district court's            factual  findings if, on  a reasonable view  of the evidence,            they are not clearly erroneous."  Id.; see also United States                                              ___  ___ ____ _____________                                            ____________________            7.  The court sentenced Hunter to 210 months on Count Two for            committing the  Maine robbery, to be served concurrently to a            60  month sentence  on Count  One for  conspiracy, and  a 120            month sentence on Count Five for being a felon in possession.            On Count  Three, the district  court sentenced Hunter  to the            mandatory  60-month  consecutive  sentence  on  the    924(c)            firearm charge.                                         -16-                                          16            v.  Zapata, 18 F.3d 971, 975 (1st  Cir. 1994).  A clear error                ______            exists  only if, after  considering all the  evidence, we are            left with a definite  and firm conviction that a  mistake has            been made.  United States v. McLaughlin, 957 F.2d 12, 17 (1st                        _____________    __________            Cir.  1992).   Moreover, we  will uphold  a district  court's            decision  to  deny a  suppression  motion  provided that  any            reasonable  view  of  the  evidence  supports  the  decision.            United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir. 1993).            _____________    ______                      1.  Hunter's Connecticut Detention                      __________________________________                      Hunter  initially  challenges the  legality  of the            Connecticut stop.  Hunter  contends that the stop constituted            a  de  facto  arrest  unsupported  by  probable  cause,  and,               __  _____            therefore, the comments and gesture he made during the  first            seventy-five minutes of the stop -- leading eventually to the            discovery  of  James Hall  --  should  have been  suppressed.            Furthermore, Hunter contends that the testimony of James Hall            should  have  been  suppressed  as the  fruit  of  an illegal            arrest.  We disagree.                      The Fourth  Amendment does not demand that probable            cause  exist prior to all police action.  See generally Terry                                                      ___ _________ _____            v. Ohio, 392 U.S. 1 (1968).  Indeed, it is well-settled that,               ____            based  merely on  a reasonable  and articulable  suspicion, a            police  officer  may make  a brief  stop  or "seizure"  of an            individual to investigate suspected past or present  criminal            activity.  See United  States v. Hensley, 469 U.S.  221, 226-                       ___ ______________    _______                                         -17-                                          17            229 (1985) (extending Terry  stops to past criminal conduct);                                  _____            United  States v. Quinn, 815  F.2d 153, 156  (1st Cir. 1987).            ______________    _____            The  relevant question  in  these cases  is  not whether  the            police  had probable  cause to act,  but instead  whether the            actions taken  were reasonable under the  circumstances.  See                                                                      ___            United States v. Sharpe, 470 U.S. 675, 682 (1985).            _____________    ______                      In  determining  whether  a  challenged  action  is            reasonable, and, thus, falls  within the range of permissible            investigatory stops  or detentions,  a court should  engage a            two-step inquiry, asking (1) whether the officer's action was            justified  at its inception; and (2) whether the action taken            was  reasonably  related  in   scope  to  the   circumstances            justifying the  interference in the first place.   Terry, 392                                                               _____            U.S. at 19-20; United States v. Stanley, 915 F.2d 54, 55 (1st                           _____________    _______            Cir. 1990).  Moreover, the Supreme Court has  explained that,            in  such  circumstances,   the  question  of   reasonableness            requires  a court to "balance[] the nature and quality of the                                                ______     _______            intrusion on personal security  against the importance of the            governmental  interests  alleged to  justify  the intrusion."            Hensley,  469 U.S. at 228  (emphasis added).   The inquiry is            _______            fact specific and a court should consider the totality of the            circumstances confronting the police at the time of the stop.            Kimball,  25   F.3d  at   6;  see   also  United   States  v.            _______                       ___   ____  _______________            Rodriguez-Morales, 929  F.2d 780, 783 (1st  Cir. 1991), cert.            _________________                                       _____            denied, 502 U.S. 1030 (1992).            ______                                         -18-                                          18                        At the outset,  we note  that Hunter  essentially            concedes  that  Officer  Richard  had  sufficient  reasonable            suspicion  to make  the  initial stop.8   Hunter's  principal            complaint,  instead,  focuses  on  the  second  step  of  the            inquiry, arguing that the length  of his detention was simply            too long.   He contends  that the length  of the  Connecticut            stop  exceeded  the  permissible   durational  limits  of  an            investigative  stop  not supported  by  probable  cause, and,            thus, made  the entire  scope of police  conduct unreasonable            per se.            ___ __                        As we  have noted before, however,  "`there is no            talismanic time beyond which  any stop initially justified on            the basis of Terry becomes an unreasonable seizure under  the                         _____            [F]ourth  [A]mendment.'"   Quinn,  815 F.2d  at 157  (quoting                                       _____            United  States v. Davies, 768 F.2d 893, 901 (7th Cir.), cert.            ______________    ______                                _____            denied,  474 U.S.  1008 (1985));  see also  United  States v.            ______                            ___ ____  ______________            Place,  462 U.S. 696,  709-10 (1983) (declining  to adopt any            _____                                            ____________________            8.  In  his reply  brief,  Hunter denies  conceding that  the            police  had  sufficient  reasonable  suspicion  to  make  the            initial  stop.  To the  contrary, we think  a fair reading of            his  opening argument to this court and the arguments he made            in his  briefs  to  the  district  court  below  belies  this            contention.  In  any event, the district court's finding that            Officer Richard properly acted in initially detaining  Hunter            after spotting him shortly after  the robbery, driving a  red            Pontiac   Sunbird,  is  eminently  supportable.    The  close            proximity in both distance  and time to the Franklin  robbery            combined with the fact  that Hunter's car identically matched            the description of the vehicle the  suspects were reported to            be driving  are articulable  and specific facts  that clearly            gave rise to  the reasonable suspicion needed to  justify the            initial stop.                                         -19-                                          19            outside  time limitation  on  a permissible  Terry stop,  but                                                         _____            holding  ninety-minute detention  of luggage  unreasonable on            specific  facts of case); United States v. Vega, 72 F.3d 507,                                      _____________    ____            514-16 (7th Cir. 1995  (upholding sixty-two minute stop; "the            crux  of our inquiry is  whether the nature  of the restraint            meets   the   Fourth   Amendment's  standard   of   objective            reasonableness").    "[C]ommon   sense  and  ordinary   human            experience must govern over rigid criteria."  Quinn, 815 F.2d                                                          _____            at 157 (quoting Sharpe, 470 U.S. at 685).   Indeed, whether a                            ______            particular  investigatory  stop  is   too  long  turns  on  a            consideration of  all relevant  factors,  including "the  law            enforcement purposes to be served by the stop as  well as the            time  reasonably  needed   to  effectuate  those   purposes."            Sharpe,  470 U.S.  at  685.   Moreover,  a court  should  ask            ______            "whether   the   police  diligently   pursued   a   means  of            investigation  that was  likely  to confirm  or dispel  their            suspicions  quickly, during  which time  it was  necessary to            detain the defendant."  Id. at 686.                                      ___                      Furthermore, time of detention  cannot be the  sole            criteria for  measuring the  intrusiveness of  the detention.            Clearly, from the perspective of the detainee, other factors,            including  the  force  used  to detain  the  individual,  the            restrictions placed on his or  her personal movement, and the            information conveyed  to the detainee  concerning the reasons            for the stop and its impact on his or her  rights, affect the                                         -20-                                          20            nature and extent of  the intrusion and, thus,  should factor            into the analysis.   Cf. Zapata, 18 F.3d at  975 (distinction                                 ___ ______            between investigatory stop and de  facto arrest turns in part                                           __  _____            on  what "a  reasonable  [person] in  the suspect's  position            would  have  understood  his  [or  her]  situation"  to  be).            Finally,  the  Supreme  Court  has admonished  that,  in  all            events, "[a] court making this assessment should take care to            consider  whether   the  police  are  acting   in  a  swiftly            developing situation,  and in such cases the court should not            indulge in unrealistic second-guessing."  Sharpe, 470 U.S. at                                                      ______            686.                      Though the issue is  exceedingly close, we  believe            that,  on the  circumstances that  obtain here,  the district            court did not err in refusing to suppress Hunter's statements            and  gesture   leading  to  the  discovery   of  James  Hall.            Initially we note that, although Hunter challenges the length            of the Connecticut detention  in its entirety, the statements            and gestures  that he seeks  to suppress occurred  within the            first seventy-five minutes of  the stop.  Thus, we  limit the            scope  of our analysis accordingly and do not address whether            the district  court would have  erred in failing  to suppress            any statements or evidence obtained later in the stop.                        More importantly, when limited to this  time frame,            we  do   not  find  the   scope  of  the   stop  particularly            unreasonable.   There is no evidence or even an allegation of                                         -21-                                          21            less  than diligent behavior on the  part of the police.  The            officers on location used a number of different investigative            techniques in their efforts to pursue quickly any information            that might  have  dispelled  the  reasonable  suspicion  that            initially  triggered  the  stop.   Officer  Richard  ran  the            registration check of the  Sunbird immediately after stopping            Hunter.  Trooper  Hall promptly informed Hunter of his rights            and questioned him about  where he had been since the time of            the robbery.  Other  officers brought a teller from  the bank            to the scene in an attempt  to establish definitively whether            or not  Hunter  had participated  in  the robbery.    Trooper            Heller,  once on  the scene,  promptly telephoned  the rental            agency in an effort  to learn more about the  individuals who            had  rented  the automobile.   In  short,  we think  that the            record clearly belies any contention that the police officers            involved  neglected  to   employ  any  reasonably   available            alternative  methods that could  have significantly shortened            their inquiry.  See  Quinn, 815 F.2d  at 158.  The  excessive                            ___  _____            length of  Hunter's detention arose not  because the officers            engaged  in dilatory  tactics,  but,  instead, because  their            investigative   efforts,   though   reasonable    under   the            circumstances, failed to dispel  the suspicion that gave rise            to the stop.9                                            ____________________            9.  In Michigan  v. Summers, 452  U.S. 692, 700  n.12 (1981),                   ________     _______            the Court  noted that  "[i]f the purpose  underlying a  Terry                                                                    _____            stop -- investigating  possible criminal activity -- is to be                                         -22-                                          22                      Moreover,  while  it is  clear  that  Hunter had  a            constitutional right  not to  answer any questions,  the fact            that his  responses were  evasive and,  at times,  defiant is            relevant in  evaluating the  scope of the  officers' conduct.            See,  e.g., id.  (detention of  forty-five to  sixty minutes;            ___   ____  ___            noting  that  it  would  have been  unreasonable  to  release            defendants  when their  answers to  initial questions  raised            rather than lowered  suspicion); United  States v.  Richards,                                             ______________     ________            500  F.2d 1025, 1029 (9th Cir. 1974) (detention over an hour;            "implausible  and  evasive responses  .  .  . indicated  that            something was  awry  and created  even  more reason  for  the            investigation being pursued further"), cert. denied, 420 U.S.                                                   _____ ______            924  (1975).   Not  only  did Hunter's  incomplete  and vague            responses  reasonably heighten  the officers'  suspicion that            Hunter had  participated in the  robbery, they also  made the            attempt to dispel that suspicion more difficult.  Indeed, had            Hunter cooperated initially and  told Officer Richard that he            had been at James Hall's house, the length of the stop  would            have  been  much shorter.   Cf.  Sharpe,  470 U.S.  at 687-88                                        ___  ______                                            ____________________            served, the  police must under certain  circumstances be able            to detain  the  individual for  longer  than the  brief  time            period involved in Terry."  See also Sharpe, 470 U.S. at 685-                               _____    ___ ____ ______            86.  The Court then listed, with apparent approval, a variety            of  different investigative techniques,  including those used            here, that  police might appropriately use  during the course            of  an   investigative  stop   to  dispel   their  reasonable            suspicion.  Summers,  452 U.S.  at  700  n.12  (quoting 3  W.                        _______            LaFave, Search and Seizure   9.2, at 36-37 (1978)).                    __________________                                         -23-                                          23            (upholding detention where  delay attributable in large  part            to defendant's evasive attempts to avoid stop).                           Next, in attempting to strike the proper  balance,            we  note  that  the   governmental  purposes  served  by  the            detention  in this  case  are substantial.   Indeed,  several            factors,  specific  to  this case,  reasonably  enhanced  the            government's interest in detaining Hunter.  First, the nature            of the  suspected criminal conduct, a  daylight armed robbery            of a  bank involving physical  threats to both  customers and            bank personnel, was severe.  Second, the detention took place            shortly after the  robbery in a nearby town not  far from the            bank.    As a  noted  commentator  has explained,  that  "the            suspected  crime is  serious enough to  prompt flight  if the            suspect is  freed, or . .  .  recent enough  that if probable            cause  soon develops  it  would be  desirable  to arrest  the            suspect  and subject  him  [or her]  to  a search"  are  both            legitimate  reasons  for  continuing  custody  that  must  be            considered in the total  balance.  3 Wayne R.  LaFave, Search                                                                   ______            and Seizure    9.2(f), at  386 (2d ed.  1987).  Finally,  the            ___________            fact  that at the  time of the  stop Hunter  was preparing to            enter an interstate highway in  a rented vehicle bearing out-            of-state plates weighs on the government's side of the scale.            Objectively,  from the  perspective  of the  officers on  the            scene,  if they  had not  detained Hunter  at that  point, he                                         -24-                                          24            could  easily  have  left  the jurisdiction  and  evaded  the            dragnet of the Connecticut State Police.                      Finally, we  do not believe,  on the facts  of this            case, that  the stop was needlessly intrusive.   Although the            police  detained  Hunter in  the  back  of Officer  Richard's            vehicle,  he was never handcuffed, see,  e.g., State v. Reid,                                               ___   ____  _____    ____            605  A.2d 1050,  1053-54  (N.H. 1992)  (placing defendant  in            cruiser does  not make  Terry stop unreasonable);  cf. Quinn,                                    _____                      ___ _____            815  F.2d at 157  n.2 (use of  handcuffs does  not make Terry                                                                    _____            stop de facto  arrest), nor  did the officers  keep the  rear            door to  the police  cruiser continuously closed.   Moreover,            there  is no  evidence  in the  record  to suggest  that  any            officer ever  drew a  gun on  Hunter.  Cf.  United States  v.                                                   ___  _____________            Trullo,  809 F.2d 108, 113 (1st Cir.) (use of weapons without            ______            more does not elevate stop to de facto arrest), cert. denied,                                                            _____ ______            482 U.S. 916 (1987).                        Furthermore,  the  officers  informed Hunter  that,            although he was  not free to leave, he  was not under arrest,            and  that  they were  detaining  him  only for  investigative            purposes because a  car identical to his Pontiac  Sunbird had            been   involved  in   a  bank   robbery  earlier   that  day.            Additionally,  only fifteen  minutes  after  Officer  Richard            first stopped  Hunter, Trooper  Hall read Hunter  his Miranda                                                                  _______            rights.    Clearly,  timely  disclosure  of  such information            (e.g.,  the reasons for the  detention, and an explanation of             ____                                         -25-                                          25            the detainee's rights) has the potential to reduce the stress            of such  a detention  and, thus, minimize  its intrusiveness.            See Place, 462 U.S. at 710 (noting that incorrect information            ___ _____            given  to  defendant  by  law  enforcement  officials  during            detention   militated   against   finding   scope   of   stop            reasonable); United  States v. LaFrance,  879 F.2d 1,  7 (1st                         ______________    ________            Cir. 1989) (similar);  cf. Brown v.  Illinois, 422 U.S.  590,                                   ___ _____     ________            603 (1975) (fact that Miranda  warnings given is relevant  in                                  _______            determining whether statement  given following illegal arrest            can be considered voluntary).                      In sum,  although  as we  have  said the  issue  is            exceptionally close, we think that,  on the record before us,            the  balance tips  in favor of  the government.   Admittedly,            Hunter's detention following the  Franklin robbery was hardly            what  one  would   normally  consider  "brief,"  and,   under            circumstances  different from  those found  here, we  have no            doubt that an investigative detention of similar length would            unacceptably  offend the  Constitution.  Nonetheless,  we are            not  persuaded,  on the  facts  of this  case  (i.e. evidence                                                            ____            sought  to  be  suppressed  was  obtained  during  the  first            seventy-five  minutes of  the stop,  diligent efforts  by the            police  to dispel  reasonable suspicion,  defendant's evasive            responses  significantly  contributing to  delay, substantial            government interests in the detention, and prompt  disclosure            to  the defendant  of  his rights  and  the reasons  for  the                                         -26-                                          26            detention),  that the  district  court erred  in refusing  to            suppress Hunter's statements and gesture.10                       2.  Hunter's Alabama Arrest                      ___________________________                      Hunter also challenges  the legality of  his arrest            in  Alabama.   Hunter  contends that,  at  the moment  of his            arrest, the arresting officer did not have probable  cause to            take Hunter into custody.  This challenge is without merit.                      The district  court found that, at  the time Hunter            was taken  into custody, Deputy Fulmer and the other officers            involved  in Hunter's  arrest  were aware  of an  outstanding            federal  arrest  warrant for  Hunter.    Such  a finding,  if                                            ____________________            10.  Furthermore, we  also have substantial  doubt concerning            the  scope   of  the   evidence  Hunter  seeks   to  suppress            (specifically,  the  testimony of  James  Hall).   Though  we            question,  but need  not decide,  whether the  government has            sufficiently  developed the  record below  to support  such a            finding, see United States v. Infante-Ruiz,  13 F.3d 498, 503                     ___ _____________    ____________            (1st Cir.  1994) ("[G]overnment  bears burden of  showing, by            reference  to  `demonstrated  historical  facts'   and  by  a            preponderance of  the evidence, that the  information or item            would inevitably have been  discovered by lawful means."), we            think   it  likely  that,   in  the  normal   course  of  the            investigation,   the   government   would   have   inevitably            discovered James Hall.   Indeed, James Hall's brother, Lance,            rented  the Pontiac  Sunbird.   Trooper Heller  obtained this            information and the fact  that Hunter was listed as  a driver            on  the rental  agreement solely  on the  basis of  the car's            license plate number.   It is true that the  record lacks any            evidence  clearly establishing  that  the  police would  have            possessed the license plate number  absent the stop, or that,            during the normal course of the investigation, officers would            have  spoken  to Lance  Hall  and necessarily  have  made the            connection to  his brother  James.   Nonetheless,  we do  not            think  it is  unduly speculative  to infer  that such  events            would have occurred.  Had the police spoken to Lance Hall, it            is  at least arguably reasonable that  he would have directed            them  to his brother James, who also knew Hunter and lived in            the vicinity of the Franklin robbery.                                         -27-                                          27            supported by the record, is a sufficient basis to support the            arrest.  See Whiteley v. Warden, Wyo. State Penitentiary, 401                     ___ ________    _______________________________            U.S. 560,  568 (1971)  ("police officers  called upon  to aid            other officers  in executing arrest warrants  are entitled to            assume  that   the  officers   requesting  aid  offered   the            magistrate   the   information   requisite  to   support   an            independent  judicial assessment  of  probable  cause");  cf.                                                                      ___            Hensley,  469 U.S.  at  229-32 (extending  Whiteley to  cover            _______                                    ________            reliance  on  a flyer  or  bulletin  to establish  reasonable            suspicion   justifying   investigatory   stops).     Fulmer's            testimony at the suppression  hearing, stating that, prior to            Hunter's arrest,  he knew about  the warrant and  had alerted            the other officers involved to this fact, amply supports  the            finding.   The fact that  Fulmer's report made  subsequent to            the  arrest fails to mention the warrant is of little moment.            Deputy Fulmer  explained at the suppression  hearing that his            report  was  incomplete, and  the  district  court was  fully            entitled to credit that testimony.                       3.  McCarthy's Alabama Arrest                      _____________________________                      McCarthy's  challenges to  his stop  and arrest  in            Chilton  County,  Alabama, on  April  23,  1993, are  equally            unavailing.   McCarthy contends  that no reasonable  basis or            probable cause existed to  stop his pickup truck as  it drove            away from  the power station.   Moreover,  he contends  that,            even  if the  police had  sufficient reasonable  suspicion to                                         -28-                                          28            detain him briefly for investigative  purposes, the detention            became an illegal de  facto arrest because he was  taken into                              __  _____            custody and held  without probable cause until  1:00 a.m. the            next day when a warrant finally issued.                        First, we  disagree that the district court clearly            erred in finding that Deputy Fulmer had sufficient reasonable            suspicion  to  have McCarthy's  truck  pulled  over.   Fulmer            testified that, at  the time  of the stop,  he was  generally            aware of  the details of the  ongoing Franklin investigation.            See  Hensley, 469  U.S.  at 229-32  (police without  specific            ___  _______            knowledge  of  facts  supporting  flyer  or  bulletin  issued            concerning  suspects may  nonetheless  rely on  the flyer  or            bulletin  to  supply   reasonable  suspicion  justifying   an            investigatory  stop).   He stated  that he  specifically knew            that  McCarthy and Hunter were  suspects in a  series of bank            robberies,  that  the two  men  were suspected  to  be living            together  in the area,  that McCarthy  was falsely  using the            name  John E. Perry, and  that an arrest  warrant existed for            Hunter.  Moreover,  Fulmer testified  that he  knew that  the            Isuzu truck was registered to a "John E.  Perry," and that he            believed  that person to be the John E. Perry under suspicion            by  the FBI.    These facts  alone arguably  give  rise to  a            reasonable   suspicion   sufficient   to   justify   a  brief            investigatory stop of McCarthy.   More importantly, adding to            this  collection McCarthy's  presence at the  scene following                                         -29-                                          29            Hunter's  flight  significantly   heightened  the   suspicion            concerning McCarthy's involvement.  Thus, we find no error in            the district court's finding.                      Furthermore, we note  that Deputy Fulmer  testified            that, at the  time he ordered the stop, he did not definitely            know  whether McCarthy  or  Hunter was  driving the  truck or            whether Hunter was  a passenger.  Clearly, it was conceivable            that Hunter, after initially fleeing on foot,  could have run            to,  and continued  his  escape in,  McCarthy's Isuzu  pickup            truck.   Thus, independent of his  suspicion about McCarthy's            involvement in the  robberies, Fulmer could  justifiably have            ordered the  stop simply to  determine whether or  not Hunter            was inside the truck.                      Second,  we  find  no  error in  the  finding  that            probable  cause  to hold  McCarthy  arose  shortly after  the            initial stop.   Under Alabama state law  it is an  offense to            provide  illegal identification  to a  police officer.   Ala.            Code   13A-9-18.1 ("Giving of false name or address to a  law            enforcement officer."); cf. Ala.  Code   13A-9-18  ("Criminal                                    ___            impersonation.").   Fulmer testified that, at the time of the            arrest, he knew McCarthy's identification of himself as Perry            was false and that such identification violated Alabama state            law.   Thus, once McCarthy  provided his driver's  license to            the trooper who stopped  him, sufficient probable cause arose            to  take him  into custody.   We find  no clear  error in the                                         -30-                                          30            district court's crediting this  testimony or in holding that            it provided a sufficient basis for detaining McCarthy.                      4.  Seizure of McCarthy's Two Suitcases                      _______________________________________                      McCarthy also  challenges the  seizure  of his  two            suitcases.     McCarthy  contends  that  the  district  court            erroneously found  that the seizure  of the  weapons and  the            other items  discovered in his maroon  suitcase properly came            within the "plain view" exception to the warrant requirement.            He argues that the  incriminating nature of the evidence  was            not  immediately apparent  to Deputy  Fulmer.   McCarthy also            contends that no credible  evidence established that he owned            the  seized weapons or that  they were actually  found in his            suitcase.   With  respect  to his  second suitcase,  McCarthy            argues that the district  court erred in finding that  he had            no expectation of privacy in the American Tourister suitcase.            McCarthy  maintains  that, though  he  left  the suitcase  in            Henderson's trailer, he left it closed and locked.  Moreover,            he contends that he had not abandoned the suitcase because he            intended to retrieve it  later in the evening  on the day  of            his arrest.  We find these arguments unpersuasive.                      To  satisfy  the  "plain  view"  exception  to  the            warrant requirement,  the government  must show that  (1) the            law enforcement  agent was legally  in a position  to observe            the seized evidence, and (2) the incriminating nature  of the            evidence  was "immediately  apparent"  to the  officer.   See                                                                      ___                                         -31-                                          31            United  States  v. Giannetta,  909  F.2d 571,  578  (1st Cir.            ______________     _________            1990).     The  incriminating  nature  of   the  evidence  is            "immediately apparent,"  if the officer,  upon observing  the            evidence,  has   probable  cause  to  believe   the  item  is            contraband  or  evidence  of a  crime.    Id.   "A  practical                                                      ___            nontechnical  probability  that  incriminating   evidence  is            involved is all that is required."  Texas v. Brown, 460  U.S.                                                _____    _____            730, 742 (1983) (quotations omitted).                      While it  is true that the district court failed to            make an explicit finding on the "immediately apparent" prong,            the oversight  matters little  in the context  of this  case.            Deputy Fulmer  knew that McCarthy,  along with Hunter,  was a            suspect  in  a  series  of  armed  bank  robberies.   Without            question, the automatic weapons, ammunition  and bullet-proof            vest were all potential instrumentalities of such crimes.  We            think a finding that the incriminating nature of the evidence            was immediately apparent to  Fulmer, implicit in the district            court's  refusal  to suppress  the  weapons  and other  items            seized from the suitcase, is clearly supported by the record.                                    We also find little merit in McCarthy's contention            that  no  credible evidence  established  that  he owned  the            weapons  and other items seized or that they were actually in            his  suitcase prior  to  its being  opened.   As  an  initial            matter,  we   note  that   McCarthy's   contention  is   more                                         -32-                                          32            appropriately considered as an attack on the relevancy of the            seized  weapons rather than a fourth amendment issue.  If, as            McCarthy contends, he  did not  own the weapons  and did  not            store them in his suitcase, then the seizure does not violate            his fourth amendment rights because it did not intrude on his            privacy.   See Sanchez, 943 F.2d  at 112-13 (Fourth Amendment                       ___ _______            rights  are  personal).   On  the other  hand,  if McCarthy's            allegation that he  did not  own or possess  the weapons  and            other items is true,  then they would not have  been relevant            as  evidence in  his criminal  trial.  See  Fed R.  Evid. 401                                                   ___            (evidence is relevant  if it  tends to make  a disputed  fact            more  or less  probable).   When, as  here, the  relevancy of            specific evidence turns on a condition of fact -- whether the            suitcase  actually contained  the  seized  weapons and  other            items -- a court  shall admit it subject to  the introduction            of evidence sufficient  to fulfill that  condition.  Fed.  R.            Evid.  104(b); United States v. Trenkler, 61 F.3d 45, 53 (1st                           _____________    ________            Cir. 1995).                      While Gene  Ellison, the person who purportedly cut            the  lock off  the maroon  suitcase, did  not testify  at the            suppression  hearing,   we  think  the   evidence  adequately            supports  the conclusion  that the items  seized were  in the            suitcase  prior to  its opening.   Henderson  testified that,            although  Ellison took the padlock off  the suitcase while he            was  in the other room, he, not Ellison, rummaged through the                                         -33-                                          33            suitcase  and found  the  weapons and  the bulletproof  vest.            Moreover, Henderson testified that the suitcase was extremely            heavy and that he needed Ellison's assistance to move it from            the back room of his trailer.  These facts reasonably support            the  inference that the weapons  and other items  were in the            suitcase   prior   to   Ellison's  removal   of   the   lock.            Furthermore, that the items  were in the suitcase, reasonably            supports the inference that they belonged to McCarthy.                      Finally,  we find  no  clear error  in the  court's            finding  that  McCarthy  had  no  legitimate  expectation  of            privacy in  the contents of the  American Tourister suitcase.            Based   on   Henderson's   testimony,  the   district   court            supportably found  that McCarthy  left the  suitcase unlocked            and open in  the back room of Henderson's trailer,  a room to            which McCarthy did not have exclusive access.  Thus, McCarthy            clearly had assumed  the risk that Henderson might consent to            a search of the room (and that the search would extend to any            items,  like the suitcase, sitting open in plain view).  See,                                                                     ___            e.g., United States v. Hall, 979 F.2d 77, 79 (6th Cir. 1992),            ____  _____________    ____            cert. denied, 113  S. Ct. 1357 (1993).   Moreover, McCarthy's            _____ ______            legitimate expectation  argument is  further undercut  by the            fact that he  left the open  suitcase in Henderson's  trailer            after  Henderson told  McCarthy  that he  and  Hunter had  to            leave.   Cf. United States v.  Rahme, 813 F.2d  31, 34-35 (2d                     ___ _____________     _____            Cir.  1987) (hotel  guest had  no expectation  of  privacy in                                         -34-                                          34            luggage  left  in  room  when,  because  of  his  arrest,  he            defaulted on rent due).11            B.  Sentencing Issues            _____________________                      We now turn to the issues Hunter and McCarthy raise            concerning their respective sentences.  Hunter complains that            the  district court  unfairly  sentenced him  to a  mandatory            five-year   sentence  under   18   U.S.C.      924(c)   while            simultaneously   enhancing  his   total  offense   level  for            brandishing  a   firearm  during  and  in   relation  to  the            Connecticut and Alabama robberies.  Hunter also contends that            the district  court erroneously  ordered  his entire  federal            sentence  to  run  consecutively   to  his  unexpired   state            sentence.     McCarthy  contends  that  the   district  court            incorrectly sentenced  him as an armed  career criminal under            18 U.S.C.   924(e).  We discuss each argument below.                       1.  Standard of Review                      ______________________                      In  the  sentencing  context,  we  review factbound            matters  for  clear  error,  and  such  facts  need  only  be            supported by a preponderance of the  evidence.  United States                                                            _____________            v. Andujar,  49  F.3d 16,  25  (1st  Cir. 1995).    When  the               _______                                            ____________________            11.  McCarthy also challenges the  search of his Isuzu pickup            truck,  arguing that it was  the fruit of  his illegal arrest            and  the illegal search of  his maroon suitcase.   Because we            find  no error in either his initial  arrest or the search of            the suitcase,  we find no error  in the search of  the truck.            Furthermore,   we  also  reject  McCarthy's  final  challenge            concerning the search of his storage shed in Maine because it            is likewise  substantially predicated on  the assumption that            the earlier arrest and seizures were illegal.                                         -35-                                          35            sentencing  issues  involve questions  of law,  including the            applicability of a relevant guideline, our review is de novo.                                                                 __ ____            United States v. St. Cyr, 977  F.2d 698, 701 (1st Cir. 1992).            _____________    _______            Within  certain  limits, decisions  to  impose concurrent  or            consecutive sentences  are committed  to the judgment  of the            sentencing court, and such decisions are reviewed only for an            abuse of discretion.   See United States v. Whiting,  28 F.3d                                   ___ _____________    _______            1296, 1210 (1st  Cir.), cert.  denied, 115 S.  Ct. 378,  498,                                    _____  ______            499, 532 (1994).                        2.  Hunter's Sentencing Issues                       ______________________________                           a.  Brandishing Enhancement                           ___________________________                      Section   2K2.4   of   the  Sentencing   Guidelines            provides, inter alia, that a person convicted under 18 U.S.C.                      _____ ____               924(c) shall  be sentenced  to a  term of  imprisonment as            required  by the statute.   U.S.S.G.   2K2.4(a).12   In turn,            18 U.S.C.   924(c) specifies that any individual convicted of            using a firearm during and in relation to a crime of violence            or a drug trafficking crime shall be sentenced to a mandatory            term   of  at  least  five  years  in  prison  to  be  served            consecutively to  any other punishment.   18 U.S.C.   924(c).            Application Note 2 to U.S.S.G.   2K2.4 adds that:                      Where  a  sentence  under  [   2K2.4]  is                      imposed  in  conjunction with  a sentence                      for an underlying  offense, any  specific                                            ____________________            12.  All guidelines' citations,  unless otherwise  indicated,            are to  the November  1994 Guidelines Manual,  the manual  in            effect on the date of sentencing.  See U.S.S.G.   1B1.11.                                               ___                                         -36-                                          36                      offense     characteristic     for    the                      possession,  use,  or  discharge   of  an                      explosive or firearm  . . . is not  to be                      applied in respect  to the guideline  for                      the underlying offense.            U.S.S.G.   2K2.4,  comment. (n.2).   Thus, where a  defendant            receives  a  mandatory  consecutive  sentence for  use  of  a            firearm during a crime  of violence, pursuant to 18  U.S.C.              924(c), a court  should not also enhance the defendant's base            offense level for the underlying crime of violence to account            for the use of the firearm.   Id.; see also U.S.S.G.   3D1.1,                                          ___  ___ ____            comment. (n.1).                      In this  case,  the  district  court  treated,  for            sentencing purposes,  the conspiracy  to commit the  Alabama,            Connecticut and Maine  bank robberies in  Count One as  three            separate counts  of conspiracy  to commit the  three separate            bank  robberies.  See U.S.S.G.   1B1.2(d) ("A conviction on a                              ___            count  charging a conspiracy to  commit more than one offense            shall be treated as if the defendant  had been convicted on a            separate  count  of  conspiracy  for each  offense  that  the            defendant  conspired to  commit.").   Accordingly,  the court            calculated a separate base  offense level for each conspiracy            and then combined  these levels together to  produce a single            total offense  level.  See U.S.S.G.   3D1.4.   In calculating                                   ___            the  separate base  offense  levels for  the conspiracies  to            commit  the  Alabama  and  the  Connecticut  robberies,   the            district  court -- in both  instances -- applied a five-level                                         -37-                                          37            enhancement    for   brandishing   a   firearm.      U.S.S.G.              2B3.1(b)(2)(C).  Because the   924(c) charge related to the            Maine bank robbery, however, the district court did not apply            the brandishing enhancement when calculating the base offense            level for  that conspiracy.   See U.S.S.G.    2K2.4, comment.                                          ___            (n.2).                      Hunter contends  that the  district court  erred in            its calculation, contending that it should not have separated            the Alabama and Connecticut  robberies from the Maine robbery            in determining whether to apply the brandishing  enhancement.            Hunter  argues that  Application Note  2  to    2K2.4 clearly            states  that  where the     924(c)  sentence is  imposed  "in            conjunction with  a sentence  for the underlying  offense" no            enhancement may be applied, and, in this case, the underlying            offense was collectively the  entire conspiracy to commit the            three  bank  robberies.    Therefore,  Hunter concludes,  the            district  court  should  not  have  applied  the  brandishing            enhancement  to the  conspiracies to  commit the  Alabama and            Connecticut  robberies   because  they   were  part  of   the            "underlying offense."  We do not agree.                      We decline  Hunter's invitation to read  the phrase            "the underlying  offense" in  Application Note 2  to preclude            the  application  of  the  brandishing  enhancements  to  the            conspiracies to commit the Alabama and Connecticut robberies.            First,   1B1.2(d) clearly  instructs the sentencing  court to                                         -38-                                          38            treat  a  count  charging  a conspiracy  to  commit  multiple            offenses as  separate counts  of conspiracy for  each offense            the defendant conspired to commit.   U.S.S.G.   1B1.2(d); see                                                                      ___            also U.S.S.G.    3D1.2, comment.  (n.8).  Thus,  it is  clear            ____            that  the Sentencing  Commission does  not consider,  for the            purposes of  applying the guidelines, a  conspiracy to commit            multiple  offenses  as  constituting  one  single  integrated            offense.                      Moreover, the  district court's application  of the            brandishing  enhancement does  not  undercut the  purposes of            Note 2.   Application Note  2 is intended  to prevent  double            counting.   See  U.S.S.G.    2K2.4,  comment. (backg'd)  ("To                        ___            avoid double counting, when a sentence under this section  is            imposed  in conjunction  with  a sentence  for an  underlying            offense, any specific offense characteristic for explosive or            firearm  discharge,  use, or  possession  is  not applied  in            respect to  such  underlying offense.").   In  this case,  no            double counting occurred.  Hunter's conviction under   924(c)            was  for using or carrying the firearm during and in relation            to  the  Maine  robbery,  and the  district  court  carefully            eschewed   applying   the   brandishing    enhancement   when            calculating  the  offense level  for  Hunter's  conspiracy to            commit  that  offense.   The  court  applied the  brandishing            enhancement only when calculating the offense levels relating            to the  Alabama and  Connecticut robberies.   Thus, the  same                                         -39-                                          39            conduct  did  not unfairly  give  rise to  both  a sentencing            enhancement and a separate mandatory sentence under 18 U.S.C.              924(c).                           b.  Consecutive or Concurrent Sentences                           _______________________________________                      In 1988,  Hunter pled  guilty in Connecticut  state            court to possession  of cocaine with  intent to  sell.  As  a            result, he  was sentenced  to a term  of ten  years in  state            prison.  After serving three  years, the balance of  Hunter's            sentence  was suspended  and he  was released on  three years            probation.   Hunter was still on probation at the time of the            Franklin   robbery.    Shortly  after  the  Franklin  robbery            occurred,  an  order  charging   Hunter  with  violation   of            probation was issued, and,  ultimately, on November 16, 1993,            a  Connecticut state  court  revoked  Hunter's probation  and            sentenced  him to  seven-years  imprisonment (apparently  the            unexpired portion  of  his suspended  ten-year  sentence  for            cocaine possession).  At the time of sentencing in this case,            Hunter was  serving the  remainder of his  Connecticut prison            term.                      At Hunter's federal sentencing, the  district court            ruled   that  his   entire   federal   sentence  should   run            consecutively to his state sentence.  In so ruling, the court            relied on U.S.S.G.   5G1.3(c), which provides that                       the  sentence  for  the  instant  offense                      shall be imposed to run  consecutively to                      the    prior    undischarged   term    of                      imprisonment to the  extent necessary  to                                         -40-                                          40                      achieve    a    reasonable    incremental                      punishment for the instant offense.13            The court  effectively held that, because  the state sentence            stemmed not just from the underlying cocaine offense but also            from the separate  probation violation, the federal  sentence            should run consecutively  to the state  sentence in order  to            insure the necessary incremental punishment.                                                ____________________            13.  The   district  court   correctly  ruled   that  neither              5G1.3(a) or (b) governed  Hunter's sentencing.  In relevant            part, U.S.S.G.   5G1.3 provides:                         5G1.3 Imposition  of a  Sentence on  a Defendant                               __________________________________________                      Subject to an Undischarged Term of Imprisonment                      _______________________________________________                      (a) If the  instant offense was committed                      while the defendant was serving a term of                      imprisonment  (including  work   release,                      furlough,  or  escape  status)  or  after                      sentencing  for,  but  before  commencing                      service  of,  such term  of imprisonment,                      the  sentence  for  the  instant  offense                      shall be imposed to run  consecutively to                      the undischarged term of imprisonment.                      (b) If subsection (a) does not apply, and                      the  undischarged  term  of  imprisonment                      resulted from offense(s)  that have  been                      fully   taken   into   account   in   the                      determination  of  the offense  level for                      the instant offense, the sentence for the                      instant  offense shall be  imposed to run                      concurrently to the undischarged  term of                      imprisonment.                      (c) (Policy Statement) In any other case,                      the  sentence  for  the  instant  offense                      shall be imposed to run  consecutively to                      the    prior    undischarged   term    of                      imprisonment to the  extent necessary  to                      achieve    a    reasonable    incremental                      punishment for the instant offense.                                         -41-                                          41                      On   appeal,  Hunter  contends  that,  in  applying            subsection (c) and sentencing  Hunter to a wholly consecutive            federal sentence, the district  court erred because it failed            to  follow the  method outlined  in Application  Note 3  to              5G1.3 for calculating the appropriate incremental punishment.            Note 3 provides that:                       [t]o  the  extent practicable,  the court                      should consider  a reasonable incremental                      penalty to be a sentence  for the instant                      offense  that  results   in  a   combined                                     _______   __  _   ________                      sentence     of     imprisonment     that                      ________     __     ____________     ____                      approximates  the  total punishment  that                      ____________  ___  _____ __________  ____                      would  have  been  imposed  under   5G1.2                      _____  ____  ____  _______  _____  ______                      (Sentencing   on   Multiple   Counts   of                      Conviction) had all of the  offenses been                                  ___ ___ __ ___  ________ ____                      federal offenses for which sentences were                      _______ ________                      being imposed at the same time.            U.S.S.G.    5G1.3, comment. (n.3) (emphasis  added); see also                                                                 ___ ____            United States  v. Whiting,  28 F.3d  1296, 1210-11  (1st Cir.            _____________     _______            1994)  (plain error  for sentencing  court to  impose federal            sentence  wholly  consecutive   to  state  sentence   without            attempting to compute the proper equivalent total  punishment            called  for by Note 3).   Thus, Hunter  contends that, before            sentencing him to a wholly consecutive sentence, the district            court  should  have calculated  the  sentence  he would  have            received if the revocation of  probation and the instant bank            robbery offenses  had all been federal offenses  for which he            was sentenced at the same time.  We disagree.                      First, as noted,   5G1.3(c) instructs the  district            court,  in cases where it  applies, to sentence defendants to                                         -42-                                          42            consecutive sentences  "to the extent necessary  to achieve a            reasonable incremental punishment."  Then, Application Note 3            prescribes   a  method   for   calculating  the   "reasonable            incremental punishment" that we have recognized applies in "a            good many of the cases likely to arise under subsection (c)."            United  States v.  Gondek,  65 F.3d  1,  3 (1st  Cir.  1995).            ______________     ______            Implicit  in this  recognition,  however, is  the fact  that,            although the method applies  in a "good many cases,"  it does            not cover every case.   Indeed, as Application Note  3 itself            explains, the methodology it  prescribes is intended only "to            assist  the court  in determining the  appropriate sentence."            U.S.S.G.    5G1.3, comment.  (n.3); cf. id.  (cautioning that                                                ___ ___            method   should   be   followed   only   "[t]o   the   extent            practicable").    Therefore,  while  it  is  evident  that  a            sentencing court should initially look to Note 3 for guidance            in  calculating an  appropriate  incremental  punishment,  it            nonetheless has discretion to follow a different  course in a            small  number of  cases where  adherence to  Note 3  would be            impracticable  and result  in  an  inappropriate  incremental            punishment.   See, e.g.,  United States v.  Brassell, 49 F.3d                          ___  ____   _____________     ________            274, 278 (7th Cir. 1995) (court has discretion in appropriate            circumstances to disregard  methodology outlined in Note  3),            United States v. Torrez 40 F.3d 84, 87 (5th Cir. 1994)(same).            _____________    ______                      In this  case, the district  court did  not err  by            following  a different course.   First, it is  far from clear                                         -43-                                          43            how, and if, Application Note 3 applies to the  facts of this            case.   None of the four detailed examples outlined in Note 3            explain how to sentence a defendant who is serving out a term            following the revocation of probation.  See U.S.S.G.   5G1.3,                                                    ___            comment.  (n.3).  Moreover, the text of Note 3 instructs that            the incremental punishment should  be calculated according to            the grouping rules set forth in   5G1.2.  Section 5G1.2  (and            the  other sections to  which it  refers), however,  does not            discuss  how  to  handle  a  sentenced  imposed  following  a            probation revocation.   The guidelines  do discuss  sentences            imposed  for probation  violations separately  under U.S.S.G.            Ch. 7.  Significantly, Application Note 5 to U.S.S.G.   7B1.3            instructs that                       it  is  the  Commission's  recommendation                      that any sentence  of imprisonment for  a                      criminal  offense  that is  imposed after                      revocation  of  probation  or  supervised                      released be run consecutively to any term                                                       ___ ____                      of imprisonment imposed upon revocation.                      __ ____________            U.S.S.G.     7B1.3,  comment.  (n.5) (emphasis  added).    If            anything, Note  5 suggests  that the  course followed  by the            district  court, imposing a  wholly consecutive sentence, was            correct.    See Torrez,  40  F.3d  at  87-88  (Section  7B1.3                        ___ ______            suggests that -- as in this case -- notwithstanding Note 3 to              5G1.3,  imposition of wholly consecutive  sentence would be            appropriate in case involving a probation revocation).                      Furthermore,  Application Note  3 fails  to explain            whether,  in a  situation like  the present,  a court  should                                         -44-                                          44            consider the underlying state drug  conviction in calculating            the  equivalent federal  sentence.   In his  argument, Hunter            ignores the underlying drug possession and contends that Note            3 requires  the court to combine only  the guideline sentence            for federal  probation revocation with the guideline sentence            for  the instant  bank  robbery charges.   Such  an approach,            however, fails to  account for the  fact that, in  sentencing            Hunter  to the  unexpired portion  of his  suspended ten-year            drug  sentence,  the state  court  arguably  aimed to  punish            Hunter for  both the  probation violation and  the underlying            cocaine  possession.   Cf. United  States v.  Gullickson, 981                                   ___ ______________     __________            F.2d  344,  346-47  (8th Cir.  1992)  (instructing sentencing            court  to calculate  appropriate  incremental  punishment  by            estimating equivalent federal sentence  for state forgery and            other  offenses  and combining  that  with  the sentence  for            instant  federal  offense where  defendant,  at  the time  of            sentencing,  was   serving   state  prison   term   following            revocation of probation imposed for state forgery conviction;            court notably  did not instruct sentencing  court to estimate            federal penalty for probation violation).                      Finally, we  note that Hunter's case  is unlike the            usual situation governed by   5G1.3(c), in which the offenses            supporting the separate sentences arise from related conduct.            See Gondek, 65 F.3d at 3.   In such cases (e.g., a state drug            ___ ______                                 ____            charge and  a related  federal  firearms charge),  sentencing                                         -45-                                          45            according to  the grouping rules as  suggested by Application            Note 3  makes much sense.   In other words,  when the federal            sentence arises from conduct or acts directly related to that            on which  the state  sentence  is based,  application of  the            guidelines'  grouping rules accords  with fairness principles            inherent in the guidelines by "limit[ing] the significance of            the formal charging  decision and . . . prevent[ing] multiple            punishment  for  substantially  identical  offense  conduct."            U.S.S.G. Ch.3  Pt.D,  intro. comment.    Hunter's  situation,            however, is different.   The federal bank robbery convictions            arise  from  conduct  completely  unrelated  to  the  cocaine            possession that lies at the heart of the state  sentence.  In            cases like Hunter's, where the acts or conduct giving rise to            the  different   sentences  are  not  closely   related,  the            rationale of  the guidelines' grouping rules  does not apply.            Indeed, Hunter's situation  is more "closely akin to the case            of the defendant  who commits  a new offense  while still  in            prison,  the very  situation in  which [U.S.S.G.    5G1.3(a)]            instructs   that   the  new   sentence   is   to  be   served            consecutively."  Gondek, 65 F.3d at 3.                               ______                      Accordingly, we do not  believe that the method for            calculating a "reasonable incremental  punishment" prescribed            in  Application Note 3  clearly addresses Hunter's situation.            In  short, it would not  have been "practicable"  in light of            the inconsistencies outlined above  for the district court to                                         -46-                                          46            have attempted to follow Note 3, and, thus, it did not err in            failing to  do so.    Moreover, we  do  not think  the  court            otherwise  abused its  discretion in  sentencing Hunter  to a            wholly consecutive  federal sentence.    The court  carefully            considered the circumstances of this case and determined that            such a sentence was necessary in order to insure a reasonable            incremental punishment for the federal bank robbery charges.                      Furthermore, we believe the Sentencing Commission's            adoption  in 1993 of Application  Note 4 to  U.S.S.G.   5G1.3            implicitly  supports  this  conclusion.   In  cases  where  a            defendant has committed a federal offense while on probation,            Note  4 expressly  limits  a district  court's discretion  in            determining  a reasonable incremental punishment by providing            that  the court must order the entire federal sentence to run            consecutively  to  any sentence  imposed  upon  revocation of            probation.     See  U.S.S.G.      5G1.3,   comment.  (n.4).14                           ___                                            ____________________            14.  In  order  to  avoid  any ex  post  facto  concerns, the                                           __  ____  _____            district court expressly declined to rely on Application Note            4, enacted  November 1, 1993  (prior to sentencing  but after            the underlying criminal acts), which provides:                      4.   If the  defendant was on  federal or                      state  probation,  parole, or  supervised                      release   at  the  time  of  the  instant                      offense,  and  has  had  such  probation,                      parole,  or  supervised release  revoked,                      the  sentence  for  the  instant  offense                      should   be   imposed   to    be   served                      consecutively to the term imposed for the                      violation  of    probation,   parole,  or                      supervised release in order to provide an                      incremental penalty for the  violation of                      probation, parole,  or supervised release                                         -47-                                          47            Significantly, the  Sentencing Commission  added Note 4  to              5G1.3 without altering in any way the language of Application            Note  3.    Thus,  in doing  so,  the  Commission  implicitly            recognized  that,  prior  to  the  adoption  of  Note  4,   a            sentencing  court at  the very  least had  the discretion  in            cases  like Hunter's  (e.g., probation  revocation cases)  to                                   ____            ignore the methodology set forth in Note 3 and order a wholly            consecutive sentence.                      3.  McCarthy's Sentencing Issue                      _______________________________                      Finally, McCarthy challenges  the district  court's            use of his seven  prior state attempted-murder convictions as            a  single predicate  offense  in determining  whether he  was            subject to sentencing  as an armed  career criminal under  18            U.S.C.  924(e).   McCarthy contends  that the  district court            should not  have considered the  attempted-murder convictions            because they arose out of the same incident that gave rise to                                            ____________________                      (in accord  with the policy  expressed in                        7B1.3 and 7B1.4).            U.S.S.G.      5G1.3,  comment.  (n.4).     We  also  find  it            unnecessary to rely  on Note  4, and, thus,  do not  consider            whether it poses any significant ex post facto concerns.                                             __ ____ _____                                         -48-                                          48            a  "non-qualifying" bank  larceny  conviction.15   We do  not            agree.                       As  the government  explains, the  sentencing court            did not count the larceny conviction as a separate  predicate            offense, but  instead counted only the state attempted-murder            convictions (and  the court counted  those only  as a  single            predicate  offense).    Thus,  the  district  court  did  not            consider an arguably non-qualifying predicate  offense (i.e.,            the bank larceny conviction) in determining whether it should            sentence McCarthy  as an  armed career criminal.   McCarthy's            implicit contention  that, whenever  the  same conduct  gives            rise  to both  qualifying and  non-qualifying  convictions, a            sentencing court may consider  neither in determining whether            defendant qualifies as an armed career criminal is completely            without logic or support.   Accordingly, McCarthy's complaint            lacks merit.                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For the foregoing reasons, we affirm.                                                    affirm                                            ____________________            15.  18  U.S.C.     924(e)  provides,  inter  alia,  that  an                                                   _____  ____            individual shall be sentenced as an armed  career criminal if            he  or  she  has  violated  18  U.S.C.     922(g)   (unlawful            possession of  a firearm) and has  three previous convictions            by  any court for a  violent felony, serious  drug offense or            both, committed on occasions different from  one another.  In            this case,  the district  court held that  McCarthy's federal            bank  larceny conviction did not qualify as a violent felony.            We have no need to review that decision.                                         -49-                                          49
