
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1555                                    UNITED STATES,                                      Appellee,                                          v.                             HECTOR M. CARRILLO-FIGUEROA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. H ctor M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                            Cyr and Stahl, Circuit Judges,                                           ______________                         and Pieras,* Senior District Judge.                                      _____________________                                _____________________               Gustavo Adolfo  del Toro, by  Appointment of the  Court, for               ________________________          appellant.               Jeanette  Mercado R os,  Assistant  United States  Attorney,               ______________________          with  whom Guillermo  Gil, United  States  Attorney, and  Jos  A.                     ______________                                 _______          Quiles  Espinosa,  Senior   Litigation  Counsel,  United   States          ________________          Attorney's Office, were on brief for appellee.                                 ____________________                                  September 14, 1994                                 ____________________                                        ____________________          *  Of the District of Puerto Rico, sitting by designation.                    PIERAS,  Senior  District Judge.   Defendant-appellant,                             ______________________          H ctor  M.  Carrillo,  appeals  his conviction  for  robbing  and          placing  the life of  a postal inspector  in jeopardy  by using a          dangerous  weapon.  Carrillo bases his appeal on two grounds.  He          argues that his conviction violates the Double Jeopardy Clause of          the Fifth Amendment and  that it resulted from the  inappropriate          admission of prejudicial evidence  by the trial court.   Carrillo          also appeals the sentence imposed by the district court following          his conviction.   Concluding that Carrillo's  conviction does not          violate the Double  Jeopardy Clause and  that the district  court          committed no error in  admitting evidence during the trial  or in          imposing the sentence, we affirm.                                           I.                                 Factual Background                                  __________________                    We recount  the evidence in the light most favorable to          the prosecution.  United States v. Mena-Robles, 4 F.3d 1026, 1028                            ____________________________          (1st Cir. 1993) (citing United States v. Alvarez, 987 F.2d 77, 79                                  ________________________          (1st Cir. 1993), cert. denied, 114 S. Ct. 147 (1993)).  The facts                           ____________          are to  the effect that on  July 27, 1992, at  approximately 8:30          p.m.,  Ivette  O'Neill, a  United  States  Postal Inspector,  was          driving home from work  in a government vehicle assigned  to her.          Inspector  O'Neill was  on twenty-four  hour call  and  carried a          government issued beeper, cellular phone,  and car radio.   While          stopped at  an intersection, a man  approached Inspector O'Neill,          put a revolver to the left side of her head, told her that he was          holding  her up, and  ordered her to  exit the vehicle.   The man                                        - 2 -          then drove off with  the car.  As soon as he drove off, Inspector          O'Neill  telephoned  the postal  office  to  inform them  of  the          robbery.   She  also informed  the robber,  via the  stolen car's          radio, that the vehicle  he had taken was a  vehicle belonging to          the United  States  and that  his  action constituted  a  federal          offense.  The day after the robbery, the stolen vehicle was found          in a  parking lot near appellant's residence and not far from the          intersection at which the  robbery had taken place.   The vehicle          was in a  disheveled, dismantled  state.  A  bulletproof vest,  a          cellular telephone,  a radio, a narcotics kit,  and the vehicle's          blue emergency revolving lights  were missing from the car.   The          postal  inspector  assigned  to  investigate  the  case  received          information that shortly after  the incident, the appellant, also          known as "El Roquero,"  had attempted to sell a  blue bulletproof          vest  in the neighborhood where Inspector O'Neill was robbed.  It          was also  discovered that appellant had  previously been arrested          by  Puerto Rico  police  and charged  with the  theft of  a motor          vehicle.   The postal  inspector obtained  appellant's photograph          from the Puerto Rico police department and prepared a photospread          with the purpose of showing it to Inspector O'Neill.   The postal          inspector showed  Inspector O'Neill  the photospread on  November          12, 1992,  and  she  identified appellant  as  her  assailant  by          picking  out  his  photograph  from  among  the   others  in  the          photospread.                    On November 25, 1992,  a Federal Grand Jury  returned a          true bill against the appellant.  He was arraigned on December 2,                                        - 3 -          1992, and entered a  plea of not guilty as to all three counts in          the  indictment.   The three-count  indictment charged  appellant          with  unlawfully  assaulting,   resisting,  opposing,   impeding,          intimidating or interfering with Postal Inspector  Ivette O'Neill          while she  was engaged in her official duties and with the use of          a revolver.   The indictment  further charged the  appellant with          the  theft of the United  States Postal vehicle  which was within          the lawful charge, custody and control of Inspector O'Neill.                      A  jury trial commenced on  January 8, 1993.   The case          was submitted  to the  jury at around  noon on January  12, 1994;          however, about five hours later the jury sent a note to the judge          informing  him that they  were unable to  reach a verdict.   Upon          receipt of the  jury's note,  the judge called  the jury and  the          parties into the courtroom.   The judge then instructed  the jury          that  they need not agree on all counts charged in the indictment          and that they  might wish to consider whether they  agreed on one          or more counts.  The judge instructed the  jury to go back to the          jury room for further deliberation.   At approximately 6:15 p.m.,          however, the jury sent the judge a second note informing him that          they were unable  to reach a  verdict.1  Before calling  the jury          back  into the  courtroom,  the judge  summoned  counsel for  the          parties  to ask for their suggestions on the matter.  Appellant's          counsel  asked the court to  declare a mistrial.   The government          opposed the  request for a  mistrial, and suggested  instead that                                        ____________________          1   The note read:   "Your  honor, honestly it  is impossible  to          reach a verdict."                                         - 4 -          the  jury be  allowed to go  home and  return in  the morning for          further deliberations.  Counsel for the government also suggested          that the jury be given an  "Allen" charge.  The judge agreed that          an "Allen" charge could  prove helpful.  However, when  the judge          called  the jury and asked  them whether they  thought they could          reach a  verdict if allowed  to go home and  return the following          morning, the foreperson responded  in the negative.  The  rest of          the jurors agreed with him by raising their hand.  The judge then          granted the mistrial requested by the appellant and dismissed the          jury.  Immediately thereafter, and before discharging counsel for          the parties, the judge set a new trial for thirteen days later.                    On January 20, 1993, five days before the new trial was          scheduled  to  begin,  appellant  filed  a  motion  of  acquittal          pursuant  to  Rule  29(c)  of  the  Federal   Rules  of  Criminal          Procedure.2   In his motion,  appellant argued that  the evidence                                        ____________________          2  Rule 29(c) of the Federal Rules of Criminal Procedure provides          as follows:                      If the  jury returns a verdict  of guilty                      or is discharged without  having returned                      a  verdict,  a  motion  for  judgment  of                      acquittal may be made or renewed within 7                      days  after the  jury  is  discharged  or                      within such further time as the court may                      fix  during  the  7-day  period.    If  a                      verdict of guilty  is returned the  court                      may on such motion set aside the  verdict                      and enter  judgment of acquittal.   If no                      verdict is returned  the court may  enter                      judgment of acquittal.   It shall not  be                      necessary to  the making of such a motion                      that a similar motion has been made prior                      to  the submission  of  the  case to  the                      jury.                                        - 5 -          presented at  trial was insufficient for a  conviction and argued          that a  retrial was  proscribed by  the Fifth  Amendment's Double          Jeopardy  Clause.  In  the event that the  trial court decided to          deny  his motion, the appellant  asked the court  to postpone the          jury trial  so that he  could have  an opportunity to  appeal the          denial  of  his  motion.    The  trial  court  did  not  rule  on          appellant's  motion  until the  day  of the  commencement  of the          second  trial.   After  entertaining  counsel's  argument on  the          subject out of the presence of  the jury, the court made a ruling          from  the  bench denying  appellant's  motion  for acquittal  and          finding that the government had presented sufficient evidence for          a  conviction.  The court  also denied appellant's  request for a          continuance  of the trial.   The trial commenced  as scheduled on          January 25,  1993, and lasted three  days.  On the  second day of          trial, at  the conclusion of the government's case, the appellant          made  a  new motion  for judgment  of  acquittal which  the court          denied.  The case was  submitted to the jury on the  third day of          trial.   The jury delivered its  verdict on the  same day finding          the appellant not guilty on counts one and two of the indictment,          but guilty on count three.  After asking for an  extension, which          the  court  granted,  the  appellant  filed  a  final motion  for                                        ____________________          Appellant  filed  his  motion  eight  days  after  the  jury  was          discharged; however,  his motion was  timely as the  7-day period          began to run on January 13 and intermediate weekends are excluded          from the computation of a seven-day period.  See United States v.                                                       ___ ________________          Castro-Lara,  970 F.2d 976 (1st Cir. 1992), cert. denied, Sarraff          ___________                                 ____________  _______          v. United States, 113 S. Ct. 2935 (1993).           ________________                                        - 6 -          judgment of acquittal  on February  22, 1993.   The court  denied          appellant's motion on April 16, 1993.                      On May 14, 1993, the court sentenced the appellant to a          term  of  imprisonment of  121 months  and  a term  of supervised          release of fiveyears.  This appealwas timely filedon May 20,1993.                                         II.                                      Discussion                                      __________                    A.  The Double Jeopardy Claim                        _________________________                    Appellant assigns error to  the trial court's denial of          his motion for judgment  of acquittal filed after the  first jury          had been  discharged, but before  the commencement of  the second          trial.3  Appellant  does not ask us to  review the correctness of          the trial court's decision  to deny his motion of  acquittal, but          instead asks us to vacate  his conviction as he alleges that  his          second  trial violated  the Double  Jeopardy Clause of  the Fifth          Amendment.  Appellant  argues that  the second trial  put him  in          double  jeopardy  because  he  was  entitled  to  a  judgment  of          acquittal at the end of  the first trial.  Pitching  his argument          on Burks v. United States, 437 U.S. 1 (1978), he  argues that the             ______________________          trial  court's  failure to  recognize  the  insufficiency of  the                                        ____________________          3  Appellant made six motions for judgment of acquittal.  He made          his  first one  on  January 11,  1993, at  the conclusion  of the          government's case in the  first trial; his second one  on January          12, 1993,  at the conclusion of  the defense's case  in the first          trial; his third one  on January 29, 1993, after the discharge of          the jury  in the first trial; his fourth one on January 26, 1993,          at the conclusion of  the government's case in the  second trial;          his fifth  one on  January  27, 1993,  at the  conclusion of  the          defense's  case; and, his sixth  one on February  22, 1993, after          the discharge of the jury in the second trial.                                                    - 7 -          evidence  presented against him in the first trial and to provide          him  with an opportunity to appeal the court's denial allowed the          government  to "take two  bites out  of the  apple" and  obtain a          conviction  against him which it  could not have  obtained at the          first trial.                      In essence, appellant  argues that the  Double Jeopardy          Clause  precluded his  second  trial due  to  the fact  that  the          government failed  to present  enough evidence to  convict during          the  first trial.    Specifically, appellant  asserts that  under          Burks he was entitled to have a reviewing court examine the trial          _____          court's denial  of his motion  of acquittal for  insufficiency of          the evidence.  The petitioner in Burks had claimed insanity as  a                                           _____          defense  to a bank robbery  count at trial,  but was nevertheless          convicted by the jury after the trial court denied his motion for          a judgment of acquittal.   Burks appealed his conviction  arguing          that the trial court had erred in denying his motion for judgment          of  acquittal.   The  Court of  Appeals  for the  Sixth  Circuit,          holding  that the  prosecution had  failed to  present sufficient          evidence to rebut petitioner's proof as to insanity, reversed and          remanded the case to the trial court with directions to determine          whether  judgment of acquittal should  be entered or  a new trial          ordered.   The  Supreme Court  granted certiorari  and  held that          double  jeopardy had  attached at  the moment  that the  court of          appeals  determined  that  the  prosecution   had  not  presented          sufficient  evidence  to convict  at  the first  trial  and that,                                        - 8 -          therefore,  the court of appeals should have entered or ordered a          judgment of acquittal.                    A defendant  in a  criminal proceeding is  protected by          the  Double  Jeopardy  Clause  against  multiple punishments  and          repeated  prosecutions for the  same offense.   United  States v.                                                          _________________          Dinitz,  424 U.S. 600 (1976) (citing United States v. Wilson, 420          ______                               _______________________          U.S. 332 (1975));  North Carolina  v. Pearce, 395  U.S. 711,  717                             _________________________          (1969).  However, the Double  Jeopardy Clause is  not an absolute          bar  to successive trials.  Justices of Boston Municipal Court v.                                      _____________________________________          Lydon,  466 U.S.  294 (1984).   "The  protection embodied  in the          _____          Double Jeopardy Clause is  a personal defense that may  be waived          or  foreclosed by  a  defendant's voluntary  actions or  choices,          including  a request  for or  effectual consent  to  a mistrial."          United  States v. Aguilar-Aranceta,  957 F.2d 18,  21 (1st Cir.),          __________________________________          cert. denied, Aguilar-Aranceta v.  United States, 113 S. Ct.  105          ____________  __________________________________          (1992) (citing United States v. Dipietro, 936 F.2d 6, 9 (1st Cir.                         _________________________          1991)).   If  a  mistrial  is declared  at  the  request  of  the          defendant,  the defendant  is deemed  to have  waived any  double          jeopardy claim he might otherwise have.  Id.                                                   __                    The  appellant moved  for a  mistrial after  the jurors          informed  the  trial court  for the  second  time that  they were          unable to reach a  verdict.  During oral argument before  us, the          appellant argued  that he  had no choice  but to  consent to  the          declaration  of a mistrial.  The record, however, does not reveal          a grudging consent by the appellant.  On the contrary, the record          shows  that the appellant asked for a mistrial almost immediately                                        - 9 -          after  the  court elicited  suggestions  from counsel  on  how to          respond  to the jury's second  note informing the  court of their          inability  to  reach a  verdict.4    Before granting  appellant's                                        ____________________          4    The exchange  between  the  court and  the  parties was,  in          relevant part, as follows:                      THE COURT:   Okay.   Good evening.   It's                      fifteen after six  and I  have a  message                      from  the jury  that  it  reads:    "Your                      Honor,  honestly,  it  is  impossible  to                      reach a verdict."  Very well.  Let's hear                      suggestions from counsel.                                  [PROSECUTOR]:  Your Honor, they  may just                      be very exhausted, and I would suggest to                      the  Court  to  just let  them  rest this                      evening  and  have  them return  tomorrow                      morning to continue  deliberation.   They                      have  not  been  deliberating  that  long                      considering  that the trial  did begin on                      Friday.                                  THE COURT:   Well, the case was submitted                      about twelve noon.                      [PROSECUTOR]:    That  is  correct,  your                      Honor.                       [DEFENSE COUNSEL]:  Your honor, this is a                      very   short  case.     They   have  been                      deliberating  more  and  they have  taken                      longer  than has  taken the  testimony of                      the witnesses.  More than six hours  they                      have been deliberating.   I believe it is                      impossible  to  reach  an  agreement.   I                      believe the jury should be  excused and a                      hung jury  -- no verdict be entered, your                      Honor, because honestly this case started                      at  noon during  the afternoon  on Friday                      with  only  one  testimony,   after  2:00                      o'clock because you were attending  a TRO                      in another case.  For less than two hours                      the witness where testifying.  All in all                      he --  in the whole case  it hasn't taken                      six hours complete  of testimony for  the                      jury.   They -- said it  is impossible to                      reach an agreement.  No, the case is very                      short.   I think that the  jury should be                                        - 10 -          motion for a mistrial,  the court advised the appellant  that the          case would have to be retried.  Appellant's counsel confirmed his          understanding of this fact by stating:  "I know that, your Honor.          I know that we have to start again,  yes, your Honor".  Thus, the          record  reflects  not  only  that  the  appellant  requested  the                                                             _________          mistrial but  that he expressly  consented to a  new trial.   The          double jeopardy claim was waived.                    Even if  the double jeopardy claim  had been preserved,          it could  not have succeeded.  A  retrial following a "hung jury"          does  not  violate the  Double  Jeopardy Clause.    Richardson v.                                                              _____________          United  States,  468 U.S.  317, 324  (1984)  (citing to  Logan v.          ______________                                           ________          United States, 144 U.S. 263, 297-98 (1892)).          _____________                    B.  Jury Access to the Photospread                        ______________________________                    Appellant  argues  that  the  trial   court  improperly          permitted  jury access,  during deliberations,  to a  photospread          which included a "mugshot" taken of  appellant in connection with          a  previous  arrest.   The  photospread  had  been admitted  into          evidence  over appellant's objection.   The photospread consisted          of  black  and  white  photographs  of  six  males  including the          appellant.  The photographs had been sandwiched between cardboard          paper so that  only the faces were visible.  The photographs were          stapled together so that the six faces were arranged in a circle.          It  was  the  same  photospread  shown  to Inspector  O'Neill  on          November 12, 1992, when she first identified the appellant as her          assailant.  The government  offered it into evidence  to buttress                                        ____________________                      dismissed, your Honor, very honestly.                                        - 11 -          Inspector  O'Neill's identification, which was heatedly contested          at both trials.  Appellant claims that the trial  court committed          reversible  error by allowing the jurors  to take the photospread          with them  during their  deliberations.   Allowing the jurors  to          take the photospread was tantamount, the appellant argues, to the          impermissible  admission into  evidence of "other  acts" evidence          contrary to  Rule 404(b) of the  Federal Rules of  Evidence.  The          appellant essentially speculates that the jury could have gleaned          that his photograph  was a  "mugshot," from which  it might  have          inferred that  he had  a prior criminal  record.  Aside  from its          speculative  nature, appellant's contention  is precluded  by his          failure to  see to it that  the photospread was made  part of the          appellate record.    Effective  appellate  review  is  impossible          without  it.  Second, appellant failed to raise the present claim          in  the district  court.   We will  not consider  arguments never          presented to the trial court.  United States v. Lebon,  4 F.3d 1,                                         ______________________          2  (1st   Cir.  1993).5     Finally,  during   closing  argument,          appellant's   counsel  invited  the   jury  to  view  appellant's          photograph  in  the  photospread  and  compare  it  to  a written          statement  made by  Inspector O'Neill.   In  so doing,  appellant          sought to emphasize the  alleged discrepancies between  Inspector                                        ____________________          5    Although  appellant  objected   to  the  admission  of   the          photospread into  evidence, the  court  overruled the  objection.          Jurors  generally  are  entitled  to  examine  exhibits  properly          admitted into evidence.  United States v. De Coito, 764 F.2d 690,                                   _________________________          695 (9th Cir. 1985); see also United States  v. Jackson, 477 F.2d                               ___ ____ _________________________          879, 880 (8th Cir. 1973); Dallago v. United States, 427 F.2d 546,                                    ________________________          553   (D.C.  Cir.  1969).    Appellant  did  not  object  to  the          photospread going to the jury room.                                        - 12 -          O'Neill's written  description of  her assailant  and appellant's          photograph in the  photospread.  Thus, in  myriad ways, appellant          waived any claim that  the jury was improperly allowed  access to          the photospread during its deliberations.                    We  do not read appellant's claim as a challenge to the          admission  of the photospread into evidence.  However, even if it          were read to encompass  such an indirect challenge, we  would not          find  reversible error.  In objecting at trial, the appellant did          not rely on Rule 404(b).  Indeed,  he failed to state a basis for          the objection.  Unless  the basis for objection is  apparent from          the context, the grounds  for objection must be specific  so that          the  trial court  may have  an opportunity  to address  the claim          later  sought  to  be presented  on  appeal.    United States  v.                                                          _________________          Figueroa, 976  F.2d  1446, 1453  (1st Cir.  1992), cert.  denied,          ________                                           _____________          Figueroa v. United States, 113 S. Ct. 1346 (1993) (citing Fed. R.          _________________________          Evid.  103(a)(1)).6   Before  objecting to  the admission  of the                                        ____________________          6  Rule 103 of the Federal Rules of Evidence provides,                      (a)  Effect of erroneous ruling.                           Effect of erroneous ruling                         Error may not predicated upon a ruling                      which admits or excludes  evidence unless                      a  substantial  right  of  the  party  is                      affected and,                       (1) Objection                          Objection                                                 In  case the  ruling is  one admitting                      evidence, a timely objection or motion to                                _______________________________                      strike appears of record, stating t  h  e                      _________________________________________                      specific  ground  or  objection,  if  the                      _________________________________________                      specific ground was not apparent from the                      _________________________________________                      context; . . .                      _______          (emphasis added).                                                    - 13 -          photospread, the  appellant conducted a voir  dire examination of                                                  ____  ____          Inspector  O'Neill  pertaining  to  the  photospread.    However,          nothing in  appellant's line  of questioning indicated  a concern          that  the   admission  of  the  photospread   was  equivalent  to          introducing  "prior bad acts"  evidence.   Rather, the  voir dire                                                                  ____ ____          examination  was  aimed at  establishing  that Inspector  O'Neill          could not have made  an adequate identification of  her assailant          in the first instance  because the photographs were not  in color          and the visible portions of the photographs were too small.   The          voir dire examination established  that Inspector O'Neill was not          ____ ____          able to ascertain  her assailant's height, skin  tone, eye color,          or  hair color from the photographs  included in the photospread.          At the conclusion of  the voir dire examination, the  court asked                                    ____ ____          appellant  whether  he  objected.   Appellant  responded  in  the          affirmative  without elaboration,  and  the  court overruled  the          objection.                    Thus,  since  appellant  failed  to  state  a  specific          objection  based on Rule 404(b),  and no such  basis of objection          could be considered clear  from the context, the trial  court was          given no opportunity to address  any concerns the appellant might          have had regarding unfair  prejudice resulting from the admission          of  the  photospread  into   evidence.    Consequently,  even  if          appellant's present claim were construed as an indirect attack on          the trial court's evidentiary ruling, we would review it only for          plain error.  United States v. Castiello, 915 F.2d 1, 4 (1st Cir.                        __________________________          1990);   see  Fed.  R.  Evid.  103(d)  ("Nothing  in  [Rule  103]                   ___                                        - 14 -          precludes  taking notice  of plain  errors affecting  substantial          rights although they  were not  brought to the  attention of  the          Court").                    We have explained in general terms that                      The   admissibility   of   "other   acts"                      evidence depends on a  two-part analysis.                      First,  "other  acts"  evidence  must  be                      excluded  if it is  relevant only because                                                   ____                      it shows bad character (i.e. the proposed                                              ___                      logical inference includes character as a                      necessary  link.)"    United   States  v.                      _________             ___________________                      Ferrer-Cruz,  899 F.2d 135, 137 (1st Cir.                      ___________                      1990)  (emphasis  in original).   Second,                      the   district   court  must   weigh  the                      probative  value  of  the   "other  acts"                      evidence against any unfair  prejudice to                      the  defendant; and it  is only  when the                      risk of  unfair prejudice "substantially"                      outweighs  its  probative value  that the                      evidence is to be excluded.          United  States v.  Figueroa,  976 F.2d  at  1453 (quoting  United          ___________________________                                ______          States v. Shenker,  933 F.2d 61,  63 (1st Cir. 1991)).   However,          _________________          because there is grave  risk of prejudice in the  introduction of          photographs such  as "mugshots", we  have adopted a  three factor          analysis    specifically    tailored    to   determining    their          admissibility.   See United States  v. Cannon, 903  F.2d 849, 855                           ___ ________________________          (1st  Cir.), cert. denied, Cannon v. United States, 498 U.S. 1014                       ____________  _______________________          (1990).  These factors, adopted by us in United States v. Fosher,                                                   _______________________          568 F.2d 207, 215 (1st Cir. 1978), are:                      1.   The   government    must   have    a                      demonstrable   need   to  introduce   the                      photograph;                       2. The photographs  themselves, if  shown                      to the  jury,  must not  imply  that  the                      defendant  has  a prior  criminal record;                      and                                         - 15 -                      3.  The manner  of introduction  at trial                      must  be  such  that  it  does  not  draw                      particular  attention  to  the source  or                      implications of the photograph.          Id.   Thus, in reviewing a trial court's admission of "mugshots",          __          we examine not only what was submitted, but why and how.  Cannon,                                                                    ______          903 F.2d at 855.                      In Cannon, we applied the preceding analysis and upheld                       ______          the  admission  of  a  group  of  photographs  which  included  a          "mugshot"  of the defendant.  The defendant had been convicted of          one count  of  armed bank  robbery  and appealed  his  conviction          claiming  that  the  admission  of  the  photographs  was  unduly          prejudicial  and an abuse of discretion  by the trial court.  The          photo array in Cannon  consisted of individual, front-view, head-                         ______          and-shoulder shots of  six young, white men.  Id.   We found that                                                        __          the admission of  the group of  photographs was not  an abuse  of          discretion.7                      An application of the three factor Fosher test  in this                                                       ______          case establishes that admission  of the photospread into evidence          did  not   constitute  plain  error.     The  government's  chief          identification  witness at  trial  was  Inspector O'Neill,  whose          identification of  appellant had  been heatedly contested  at the          first  trial.  Thus, the government introduced the photospread to          strengthen  Inspector  O'Neill's  identification testimony.    As          expected,  the  defense  did  indeed mount  an  effective  attack          against  Inspector  O'Neill's  identification   testimony,  which                                        ____________________          7   We undertook "abuse  of discretion" review  in Cannon because                                                             ______          the defendant had interposed a specific Rule 404(b) objection.                                          - 16 -          weakened  a  key  link in  the  government's  case.8   Thus,  the          government   had  a   demonstrable   need   for  the   challenged          photospread, as support for its critical identification evidence.                    Second, the  photospread did not  imply that  appellant          had  a prior criminal record.  Like the photographs introduced in          Cannon,  the photospread  contained front-view  photographs only.          ______          Moreover,  only  the face  of  each  individual  was visible,  as          cardboard  had been used to redact both sides of the photographs.          No photographic backdrops  were visible.   There were no  profile          shots,  no number  markings,  and  no  height  bars.    Like  the          photographs   in  Cannon,   the   photographs  included   in  the                            ______          photospread in this case possessed no characteristics identifying          them as police "mugshots."                    Third,  the   manner  in  which  the   photospread  was          introduced at trial drew no particular attention to the source or                                        ____________________          8  The defense  first attacked Inspector O'Neill's identification          during direct examination by  conducting a voir dire examination,                                                     _________          aimed at establishing that O'Neill could not have made a reliable          identification of her assailant from the photospread.  Later, the          defense  attacked Inspector  O'Neill's  identification on  cross-          examination and during its direct examination of Modesto Estrada,          a  police officer  who prepared  a statement  in response  to the          complaint filed by Inspector O'Neill with the Puerto  Rico Police          Department.    The  defense  highlighted  details   of  Inspector          O'Neill's  identification testimony  at  the  second trial  which          differed  from  her  testimony  at   the  first  trial  and  from          descriptions she had given previously to the postal inspector and          to Officer Estrada.  The most significant differences related  to          the color of the assailant's eyes and skin.  Finally, the defense          obtained admissions from O'Neill that  during the first trial she          had testified that the  lights at the intersection where  she had          been  robbed were "not bright,"  whereas at the  second trial she          stated  that  there  were   bright  "anti-crime"  lights  at  the          intersection.                                        - 17 -          the implications of the  photographs.  Indeed, government counsel          and  Inspector  O'Neill said  nothing  about  the source  of  the          photographs or their implications.                    As  the photospread was  properly admitted in evidence,          the  jury was entitled  to examine and  consider it.   We find no          error, plain or otherwise.                    C.  The Sentencing Enhancements                        ___________________________                    At sentencing, the district court increased appellant's          base offense level ("BOL")  of 20 by six levels for  the use of a          firearm  as charged  in count  three,9 see  U.S.S.G.    2B3.1; by                                                 ___          three  levels  due  to  the  fact  that the  victim  was  a  "law          enforcement  officer," see  id.    3A1.2(b);  and finally  by one                                 ___  __          level  because  the loss  sustained as  a  result of  the robbery          exceeded $10,000.00, see id.    2B3.1(b)(6)(A).  Combined with  a                               ___ __          criminal history category  of I,  the total offense  level of  30                                        ____________________          9  Count three charged that:                      [T]he  defendant  herein  did  knowingly,                      willfully, intentionally, and  unlawfully                      rob  Postal  Inspector Ivette  O'Neill, a                      person having lawful charge,  custody and                      control  of  an  official  United  States                      Postal  vehicle,  to  wit:   a  1989 gold                      Honda  Accord,  registration  tag  number                      AWX-038,  United  States  Postal  service                      vehicle number  9911443 and in  so doing,                      the  defendant,  HECTOR MANUEL  CARRILLO,                      also known as  "El Roquero," did  put the                      life of Postal  Inspector Ivette  O'Neill                      in  jeopardy by  the use  of  a dangerous                      weapon,   to  wit:    a  stainless  steel                      revolver with a barrel  approximately two                      (2)  inches  long,  all  in  violation of                      title 18, United States, section 2114.                                        - 18 -          resulted in a  guideline sentencing  range ("GSR") of  97 to  121          months.  The sentencing court imposed a sentence of 121 months.                    We review interpretations  of the Sentencing Guidelines          de  novo.  United States v. Skrodzki,  9 F.3d 198 (1st Cir. 1993)          __  ____   _________________________          (citing  United States v.  Mullins, 992  F.2d 1472,  1478-79 (9th                   _________________________          Cir.),  cert. denied, Winkleman v. United States, 113 S. Ct. 2997                  ____________  __________________________          (1993).  After determining the Guideline's  meaning and scope, we          review the  sentencing court's factual findings  for clear error.          Id.           __                    Appellant  argues  that  the  enhancement for  using  a          firearm  is  inappropriate  because  the  firearm  for  which  he          received  a six level enhancement is the same firearm referred to          in  count  two   of  the  indictment.10    He  contends,  without          argument or citation to authority, that since  the jury acquitted                                        ____________________          10  Count two of the indictment reads,                      [T]he defendant herein, did knowingly use                      and  carry a  firearm  of  the  following                      description:  a stainless  steel revolver                      with  a  barrel  approximately   two  (2)                      inches long, during and in relation to  a                      crime of  violence in violation  of Title                      18,  United States Code,  Section 111, as                      defined  in Title 18, United States Code,                      924(c)(1)   and   (3),   which   may   be                      prosecuted  in  a  Court  of  the  United                      States, to wit:   assaulting,  resisting,                      opposing,   impeding,   intimidating   or                      interfering, with Postal Inspector Ivette                      O'Neill, an officer  designated in  Title                      18,  United  States  Code, Section  1114,                      while  engaged in the  performance of her                      official  duties.   All  in  violation of                      Title  18,  United  States Code,  Section                      924(c)(1) and (3).                                                      - 19 -          him on count two the sentencing court could not take the  firearm          into account for  calculating his  sentence on count  three.   We          find nothing inappropriate in the enhancement.                    The Guidelines specifically provide that an enhancement          is to  be applied when a firearm is used during the commission of          a robbery.  The fact that the jury found the appellant not guilty          on  count two of the  indictment is irrelevant  to the sentencing          enhancement  applied  under  count  three,  because  count  three          specifically charged appellant with conduct which included "[the]          use of a  dangerous weapon, to wit:   a stainless  steel revolver          with a barrel  approximately two (2) inches  long."  Accordingly,          appellant's  argument that the six level  enhancement is based on          conduct of which  he was acquitted mischaracterizes the basis for          the enhancement applied by the sentencing court.                      Thus,  we need  go  no  further.    Since  the  conduct          pursuant  to  which the  enhancement was  applied formed  part of          count  three as  alleged, and  since  appellant was  convicted on          count three, we believe that the district court correctly imposed          the six  level enhancement for use  of a firearm, see  U.S.S.G.                                                              ___          2B3.1(b)(2)(B), and  that the  resulting  ten-year and  one-month          Guideline  sentence was  proper and  well within  the twenty-five          year maximum permitted under 18 U.S.C.   2114.                    Next,  the  appellant  argues   that  the  three  level          enhancement  imposed  because   Inspector  O'Neill   was  a   law          enforcement officer  constituted  error since  the  base  offense          level for robbery contains  an inherent enhancement which already                                        - 20 -          takes  account of  O'Neill's status  as a  postal employee.   The          court  applied  the  enhancement pursuant  to  Guideline  Section          3A1.2.(b) which provides:                      [If] during the course of the  offense or                      immediate flight therefrom, the defendant                      or   a  person  for   whose  conduct  the                      defendant   is   otherwise   accountable,                      knowing  or  having  reasonable cause  to                      believe  that   a   person  was   a   law                      enforcement   or   corrections   officer,                      assaulted  such  officer   in  a   manner                      creating  a  substantial risk  of serious                      bodily injury, increase [the base offense                      level] by 3 levels.          Note 5 of the Commentary Notes to Section 3A1.2 provides:                      Subdivision (b)  applies in circumstances                      tantamount to  aggravated assault against                      a law enforcement or corrections officer,                      committed   in  the   course  of   or  in                      immediate  flight   following  ,  another                      offense,  such as  bank  robbery.   While                      this subdivision may apply  in connection                      with  a variety of  offenses that are not                      by   nature  targeted   against  official                      victims, its applicability is  limited to                      assaultive     conduct     against    law                      enforcement or  corrections officers that                      is  sufficiently  serious  to  create  at                      least  a  "substantial  risk  of  serious                      bodily injury"  and that is  proximate in                      time to the commission of the offense.           At the sentencing hearing,  the court ruled that the  enhancement          applied  because  the defendant  had to  be aware  that Inspector          O'Neill was a law enforcement officer as the vehicle that she was          driving exhibited  characteristics identifying it  as an official          vehicle.                    Appellant  contends that  Note 4  of the  Commentary to          Section 3A1.2 precludes the enhancement:                        _________                                        - 21 -                      "Motivated by such status" in subdivision                      (a) means that  the offense of conviction                      was motivated by the fact that the victim                      was a government officer and employee, or                      a member of the immediate family thereof.                      This  adjustment  would not  apply, where                      both  the  defendant   and  victim   were                      employed  by  the same  government agency                      and  the  offense  was  motivated   by  a                      personal dispute.  This  adjustment would                      also not  apply in the case  of a robbery                      of a postal employee because  the offense                      guideline   for   robbery   contains   an                      enhancement (  2B3.1(a))  that takes such                      conduct into account.          Appellant argues that Inspector O'Neill  is a postal employee and          that therefore  the three level enhancement should  not have been          applied.  Appellant's reliance  on Note Four is misplaced.   Note          Four governs when the three level enhancement is applied pursuant          to section 3A1.2(a),  not section 3A1.2(b).  The sentencing court                                ___          enhanced the BOL by  three levels because Inspector O'Neill  is a          law enforcement officer, not  because she was a postal  employee.          To be sure, Note Four makes  clear that a three level enhancement          cannot be applied pursuant to U.S.S.G. 3A1.2(a) if the offense of          conviction was motivated by the fact that the victim was a postal          employee.  However, the  sentencing court applied the enhancement          because  it found  that  the appellant  had  reasonable cause  to          believe  that Inspector  O'Neill was  a law  enforcement officer.          Therefore,  we find that the  court properly enhanced  the BOL by          three levels pursuant to   3A1.2(b).                    Appellant's final assignment of error  involves the one          level  enhancement imposed pursuant  to U.S.S.G.   2B3.1(b)(6)(A)                                        - 22 -          because the court calculated  the loss11 suffered as a  result of          the robbery at more  than $10,000.00.  The  court found that  the          property  at issue  here --  a 1989  Honda Accord,  a bulletproof          vest, a cellular telephone,  a radio, a radio converter,  and the          vehicle's blue emergency revolving lights  -- had a total  market          value of $14,635.00.  Section 2B3.1(b)(6)(A) provides that if the          loss  suffered as a result  of a robbery  exceeds $10,000.00, the          BOL should be increased by one level.  Appellant's contentions on          appeal, generously construed, are that the sentencing court erred          in finding that  the loss in this  case was more  than $10,000.00          because (1)  the court did not use an appraisal of the vehicle in          making its finding; (2) the court did not use the "black book" to          establish the vehicle's  fair market value;  (3) the fair  market          value of  the vehicle at the time of the sentencing was less than          $10,000.00  because as a government vehicle it is tax exempt; and          (4) the  sum of the vehicle's  correct fair market value  and the          value  of the  other  items missing  from the  car do  not exceed          $10,000.00.                    Ordinarily, when  property is taken, the  amount of the          loss  is calculated  by  using  the  fair  market  value  of  the          particular property at  issue.   U.S.S.G.   2B1.1;  App. Note  2.          The  amount of loss in the case  of a vehicle is calculated using          the market value of the vehicle even if the vehicle is  recovered          immediately.   Id.    "The  loss  need  not  be  determined  with                         __                                        ____________________          11  "Loss" means the value of the property taken.  U.S.S.G.             2B1.1; App. Note 2.                                        - 23 -          precision,  and  may be  inferred  from  any reasonably  reliable          information  available, including  the scope  of the  operation."          U.S.S.G.   2B1.1; App.           Note 3.  A  defendant bears a heavy burden  of demonstrating that          the  district  court's finding  on  value  is clearly  erroneous.          Skrodzki, 9 F.3d at 203.          ________                    A  sentencing  court  may   base  its  finding  on  any          reasonably reliable  information available.  In  finding that the          market value  of the  items  at issue  here exceeded  the sum  of          $10,000.00,  the  court credited  information in  the presentence          report, as well as the hearsay testimony of the probation officer          at the  sentencing hearing that  postal agent J.J.  Rodr guez had          stated  that the fair market value of the vehicle was $11,000.00;          its  cost  to  the  government,  $8,750.00;  the   value  of  the          bulletproof vest,  $350.00; the cellular telephone,  $850.00; the          radio,  $1,700.00; the  radio converter,  $700.00; and  emergency          lights, $35.00.   Appellant  presented no evidence  to rebut  the          probation officer's testimony.   Appellant advanced no ground for          considering the testimony of the probation officer unreliable and          the sentencing court credited it  as having sufficient indicia of          reliability.   Finally, the value  of government vehicles  is not                                      _____          affected  by their  tax exempt  status.   The  sentencing court's          findings were not clearly  erroneous.  For the reasons  set forth          above, we find that  the sentencing court did not commit error in          imposing appellant's sentence.                                         III.                                        - 24 -                                      CONCLUSION                                      __________                    For  the foregoing reasons,  appellant's conviction and          sentence are affirmed.                       affirmed                       ________                                        - 25 -
