
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1360                                    UNITED STATES,                                      Appellee,                                          v.                                  PATRICK J. MEADE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                             Cyr, Senior Circuit Judge,                                   ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Paul F. Markham, by Appointment of the Court, for appellant.            _______________            Kimberly S. Budd, Assistant United States Attorney, with whom            ________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                    April 8, 1997                                 ____________________                      STAHL, Circuit Judge.   In  December 1993,  federal                      STAHL, Circuit Judge.                             _____________            agents  arrested  defendant-appellant  Patrick  J.  Meade  in            Massachusetts for his suspected involvement in the  attempted            robbery of an armored vehicle.  A federal grand jury in Rhode            Island  returned an  indictment  charging  him  with  various            offenses related to the attempted robbery.  Before trial, the            federal district  court in  Rhode Island dismissed  the count            that  charged Meade  with being  a felon  in possession  of a            firearm in violation of 18 U.S.C.   922(g)(1).   After a jury            trial,  Meade   was  acquitted  of   all  remaining   counts.            Subsequently,   the   government  prosecuted   the  felon-in-            possession count in Massachusetts federal district court, and            in  December 1995, a federal  jury in that  state found Meade            guilty  of that offense.   The court then  imposed a seventy-            month imprisonment term, taking into  account Meade's conduct            in the attempted robbery.                      On appeal,  Meade raises four  distinct claims: (1)            federal agents lacked probable  cause to arrest him; (2)  the            instant prosecution violated the  Speedy Trial Act because of            his  earlier  arrest,  indictment  on the  same  charge,  and            subsequent dismissal  of the  charge; (3) the  district court            erred in  failing to instruct the  jury on his theory  of the            case; and (4) the  district court erred when it  enhanced his            sentence based on conduct underlying charges of which  he had            been acquitted.  Finding  none of these arguments persuasive,                                         -2-                                          2            we  affirm.   We  provide the  pertinent background  facts as            necessary to the discussion of each contention.                                          I.                                          I.                                          __                                    Probable Cause                                    Probable Cause                                    ______________                      After a three-day evidentiary hearing, the district            court  found that, at the  time of Meade's  arrest, agents of            the Federal  Bureau of Investigation ("FBI")  had information            from which  they  could reasonably  believe that  he and  two            others  were about to  rob an armored courier  van.  Based on            this finding,  the court determined  that Meade's warrantless            arrest did not violate his Fourth Amendment rights and denied            his pre-trial  motion to suppress  a firearm seized  during a            search incident to his  arrest.  On appeal, Meade  renews his            contention that agents lacked probable cause to arrest him.            A.  Standard of Review            ______________________                      We review the district court's legal conclusions on            a motion to suppress de novo and examine its factual findings                                 __ ____            for clear error.  United States  v. Young, 105 F.3d 1, 5 (1st                              _____________     _____            Cir. 1997).  "[T]he  decision whether these historical facts,            viewed  from  the  standpoint of  an  objectively  reasonable            police officer, amount to reasonable suspicion or to probable            cause" presents a  mixed question  of law and  fact which  is            subject  to plenary review.  Ornelas v. United States, 116 S.                                         _______    _____________            Ct. 1657, 1661-62 (1996).                                         -3-                                          3            B.  Probable Cause            __________________                      A  warrantless arrest requires  probable cause, the            existence  of  which  must  be determined  in  light  of  the            information that law  enforcement officials possessed  at the            time of the arrest.  See United States v. Diallo, 29 F.3d 23,                                 ___ _____________    ______            25  (1st Cir.  1994).   "Probable  cause  exists when  police            officers,  relying  on   reasonably  trustworthy  facts   and            circumstances,  have  information  upon  which  a  reasonably            prudent person would believe the suspect had committed or was            committing a  crime."  Young,  105 F.3d at  6.  To  establish                                   _____            probable cause, the government  "need not present the quantum            of proof necessary to convict."  United States v. Uricoechea-                                             _____________    ___________            Casallas, 946 F.2d 162, 165 (1st Cir. 1991).            ________            C.  Discussion            ______________                        The  operation  culminating  in   Meade's  arrest            involved  numerous  FBI  agents.   Several  of  these  agents            testified to their own observations of the  events leading up            to  the  arrest  as well  as  to  other  agents' observations            communicated to them via  FBI radio.  Based on  the testimony            and evidence presented, Meade contends that the FBI agent who            ordered  his arrest,  Agent John  Newton, lacked  information            sufficient to believe that Meade was committing a crime.  The            government disputes this claim and, invoking  the proposition            that "probable cause is determined in light of the collective            knowledge  of the  law  enforcement officers  involved in  an                                         -4-                                          4            investigation," further relies  upon certain  facts known  to            other  agents, but  not  to Agent  Newton.   Because  of  the            relative   complexity   of   the  law-enforcement   operation            preceding Meade's arrest, we begin with a brief discussion of            principles  that  pertain  when   the  government  seeks   to            establish probable cause on  the basis of knowledge possessed            by more than one participant.                      1.  Fellow-Officer/Collective-Knowledge Rule                      ____________________________________________                      Under  the  "fellow-officer" rule,  law enforcement            officials  cooperating in  an  investigation are  entitled to            rely  upon each other's  knowledge of facts  when forming the            conclusion that  a suspect has  committed or is  committing a            crime.  See  United States  v. Ventresca, 380  U.S. 102,  111                    ___  _____________     _________            (1965) ("Observations  of fellow  officers of  the Government            engaged  in a  common  investigation are  plainly a  reliable            basis  for a warrant applied  for by one  of their number.");            see generally 2 Wayne R. LaFave, Search and Seizure   3.5(a),            ___ _________                    __________________            at 250-52 (1996).1  Thus, when a law enforcement officer with            information amounting  to probable  cause directs an  officer            who  lacks the knowledge to  make the arrest,  we "impute" to            the arresting officer the directing officer's knowledge.  See                                                                      ___            Burns v. Loranger,  907 F.2d  233, 236 n.7  (1st Cir.  1990);            _____    ________                                            ____________________            1.  See also United States v. Asselin, 775 F.2d 445, 446 (1st                ___ ____ _____________    _______            Cir.  1985) (rejecting "totem  pole hearsay" contention where            special   agent   relied    upon   local   police   officer's            communication   of   information   obtained   from   reliable            informant).                                         -5-                                          5            Karr  v. Smith, 774 F.2d 1029, 1032 (10th Cir. 1985); Mendoza            ____     _____                                        _______            v. City of  Rome, 872  F. Supp. 1110,  1116 (N.D.N.Y.  1994);               _____________            LaFave,  supra   3.5(b),  at 255-58;  e.g., United  States v.                     _____                        ____  ______________            Paradis,  802 F.2d  553,  556-57 (1st  Cir. 1986)  (upholding            _______            arrest ordered by superior although the arresting officer may            have lacked probable cause).2                      The  fellow  officer rule  underlies  the well-worn            maxim that  "the collective knowledge and  information of all            the officers  involved  establishes probable  cause  for  the            arrest."   United States v.  Paradis, 802 F.2d  553, 557 (1st                       _____________     _______            Cir. 1986); see United  States v. Hinojos, 107 F.3d  765, No.                        ___ ______________    _______            96-5127,  1997 WL 66160, at  *2-3 (10th Cir.  Feb. 18, 1997);            Karr, 774 F.2d  at 1031;  United States v.  One 1975  Pontiac            ____                      _____________     _________________            Lemans, 621 F.2d 444,  449 (1st Cir. 1980).   The "collective            ______            knowledge" or  "pooled knowledge" principle has  been used to            validate arrests in  two ways: (1)  by tracing the  arresting            officer's action back to an  individual in a law  enforcement                                         __________            agency  who  possessed  information sufficient  to  establish            probable cause, and (2) by finding  that the directing agency                                                                   ______                                            ____________________            2.  If  it turns  out,  however, that  the directing  officer            lacked  probable cause to  order the arrest,  then the arrest            itself  is  unlawful regardless  of  the arresting  officer's            otherwise proper  reliance.  See Whiteley v. Warden, 401 U.S.                                         ___ ________    ______            560, 568  (1972) (explaining that although arresting officers            are "entitled to assume" that fellow officers seeking help to            execute arrest warrant had probable cause, arrest is unlawful            where warrant  did not  issue upon probable  cause); Mendoza,                                                                 _______            872 F. Supp. at 1116.                                         -6-                                          6            as a whole possessed the necessary facts.  See LaFave, supra,                                                       ___         _____              3.5(b), at 259-60 (noting cases).                      A sensible  argument has been made  that looking to            the  agency's knowledge as a  whole is unwise  because it may            "encourage  the  dissemination  of arrest  orders  based upon            nothing  more than  the  hope that  the unevaluated  bits and            pieces in the  hands of several  different officers may  turn            out to add up to probable cause."  LaFave, supra   3.5(b), at                                                       _____            260.  In the same vein, the collective-knowledge corollary of            the  fellow officer rule would  seem to require,  or at least            presuppose, the  flow of  information from the  officers with            knowledge  of facts  tending to  establish probable  cause to            those lacking that knowledge (or, at least, to the  directing            or arresting officer).  See LaFave, supra   3.5(b), at 260-61                                    ___         _____            n.53,   3.5(c), at 266 n.72 (citing cases).3                      We have not directly addressed the question whether            the  collective-knowledge rule  is  limited to  situations in            which the knowledge vests  in a pertinent individual --  such            as  the directing or arresting officer -- or whether the rule            broadly  encompasses  situations  in which  the  officers  or            agency as a whole possess the requisite information.  In this                                            ____________________            3.  See  e.g., State v. Cooley, 457 A.2d 352, 355 (Del. 1983)                ___  ____  _____    ______            ("To  say  in  the abstract  that  probable  cause  is to  be            evaluated on the  basis of the collective  information of the            police  ignores  the  underlying  assumption  -- and  factual            reality  -- that  there is  some communication  between those            officers,  who do know facts amounting to probable cause, and            those who do not.").                                         -7-                                          7            case,  the  government   attempts  to   invoke  the   broader            application.   Here,  however, we  need consider  neither the            possible permutations of these principles nor choose  between            them4 because we find that both the directing officer and the            arresting  officer  individually   possessed  the   requisite            knowledge, albeit from different facts, to establish probable            cause.                      2.  Suppression Hearing Evidence                      ________________________________                      In  light of  this  discussion, we  review in  some            detail  the  suppression  hearing  evidence  and  the court's            factual   findings   regarding   the   various   FBI  agents'            observations and communications throughout the operation that            resulted in  Meade's arrest.  We pay  particular attention to            the observations and knowledge of Agent Newton, the directing            officer, and Agent Jay Fallon, the arresting officer, and, in            doing so, we view the evidence in the light most favorable to                                            ____________________            4.  One  approach is  to  presume  communication, absent  the            defendant's   rebuttal.    See  generally  United  States  v.                                       ___  _________  ______________            Shareef, 100 F.3d 1491,  1503-05 (10th Cir. 1996) (discussing            _______            presumption   of   communication  underlying   imputation  of            knowledge  among officers working  together, but declining to            impute  to one  officer  another's  knowledge of  defendant's            physical characteristics  in light of  trial judge's specific            finding  that such  information  had not  been shared)  (also            opining that even absent evidence of communication, it may be            appropriate  to  consider,  under "single  organism"  theory,            "collective knowledge"  of  officers acting  collectively  to            determine  reasonableness  of   their  behavior);  see   also                                                               ___   ____            Illinois  v.  Andreas,  463   U.S.  765,  771-72  n.5  (1983)            ________      _______            (explaining that  the knowledge of one  official is "presumed            shared" by others cooperating in an investigation).                                         -8-                                          8            the court's ruling.   See United States v. Maguire,  918 F.2d                                  ___ _____________    _______            254, 257 (1st Cir. 1990).                      Several days before December 23, 1993, an informant            advised FBI special  agent Frank Brosnan,  the case agent  in            charge of this matter, that  two men, Lawrence "Mitch" Lanoue            and  Albert  Cole,  assisted   by  at  least  one  additional            unidentified person, would attempt  to rob an armored courier            vehicle.  The informant reported that the robbery would occur            in a mall or congested area and that the suspects would use a            particular vehicle  in the  operation: namely, a  stolen gray            1985  Oldsmobile (the "gray Olds"  or "Olds").   In fact, the            gray  Olds  had  already  been located  and  law  enforcement            personnel  had surreptitiously planted an electronic tracking            device in it.                      In the early morning hours of December 23, 1993, at            the state police barracks in Rhode Island, case agent Brosnan            briefed a twenty-member Special Weapons and Tactics  ("SWAT")            team  and its  commander,  Agent Newton,  regarding what  was            known about the purported heist.  FBI surveillance teams were            deployed  in the  air  and  on  the  ground  to  monitor  the            movements  of the gray Olds,  which was located  on a farm in            Pascoag, Rhode Island  at that time.   The surveillance  team            also kept  watch over  a house  in nearby  Harrisville, Rhode            Island, where they suspected  Lanoue to be staying.   The FBI                                         -9-                                          9            SWAT team stood by, ready to respond if the surveillance team            reported suspicious movements connected to the Olds.                      At about 9:50 a.m.,  a surveillance pilot noticed a            pickup truck  pull out of the Harrisville  driveway, drive to            the nearby Pascoag  farm, and park near  the gray Olds.   The            pilot  communicated  his observations  over  FBI  radio.   He            advised that he observed the truck's driver and several other            people  move  between the  two  vehicles,  apparently placing            items  into the Olds' trunk.   Around 10:00  a.m., the pickup            truck and the  gray Olds  exited the farm  and drove  through            Woonsocket to  a shopping  mall in Cumberland,  Rhode Island.            Ground surveillance units, followed by Agent Newton and other            SWAT  team   members,  began  to  trail   the  vehicles  with            assistance  from  the  air  surveillance unit.    During  the            operation, Agent Newton monitored two  FBI radio frequencies,            one  dedicated to the  surveillance units,  which transmitted            both air and ground communications, and the other to the SWAT            units.                      The  pickup truck's  driver left  the truck  in the            Cumberland  mall parking lot and entered the gray Olds, which            then  proceeded over  the Rhode  Island state  line toward  a            shopping    mall   (the    "Ames   mall")    in   Bellingham,            Massachusetts.5  At approximately 10:40 a.m.,  after stopping                                            ____________________            5.  The surveillance  pilots were able to  observe the pickup            truck throughout the morning  and noted that it did  not move            from its spot in the Cumberland mall.                                         -10-                                          10            briefly  outside the entrance of the Ames mall, the gray Olds            travelled  down  a street  leading to  the  back of  the Ames            department store.   The surveillance pilot  warned the ground            teams not to enter the street, which was a dead-end.   At the            rear of the Ames store, the Olds' occupants rendezvoused with            a person (or persons) in a parked brown automobile.  Over the            next ten  minutes, several individuals moved  between the two            vehicles.                      Around that  time, approximately 10:50  a.m., Agent            Newton and his SWAT team arrived at the Ames mall.   At Agent            Newton's  direction,  the  SWAT  team  members  placed  their            vehicles  in various  locations in  the parking  lot.   Agent            Newton had  just heard over the radio about the gray Olds and            brown vehicle parked together behind the Ames store.  He also            heard  the surveillance  pilot state  that an  individual who            exited the brown  vehicle had entered  the gray Olds,  though            the pilot did not provide  a description of this  individual.            Shortly thereafter,  the surveillance  pilot  radioed to  the            ground  crew  that the  brown  vehicle was  leaving  the area            behind the Ames store, and asked if he should follow it.  The            pilot  was directed  to stay  with the  gray Olds.   Although            Agent Newton had  been monitoring the surveillance  frequency            along  with  the  SWAT  frequency,  he  was  unaware  of  the            communication that the brown car had departed.                                         -11-                                          11                      Shortly  thereafter,  the gray  Olds left  the mall            area,   made  several  turns   through  a  residential  area,            returned,  and   stopped  near  the  entrance   to  the  Ames            department store.  The surveillance pilot observed a heavyset            man wearing dark clothing  exit the Olds and walk  toward the            store.  The pilot noticed what  appeared to be a red bag over            the  man's   shoulder.    Agent  Newton   heard  the  pilot's            description of  the  man over  the  radio and  also  received            information that the heavyset individual was lingering in the            area  in front  of the  Ames store.   At  approximately 11:00            a.m., Agent  Newton directed  another agent to  look for  the            heavyset man.  The agent entered and searched the Ames store,            but could not find him.  A short time later, a different man,            wearing a dark knit cap, entered  the Olds and remained in it            for approximately fifteen minutes.  That individual then left            the  vehicle, entered  the Ames  store, and  returned minutes            later.                      Agent Newton subsequently received  a communication            that around 11:25 a.m., the heavyset man returned to the gray            Olds and joined  the other  occupants.6  The  car then  drove            around  the Ames mall parking  lot.  At  one point, it passed            special  agent Jay Fallon, a SWAT team member, who was seated                                            ____________________            6.  At this point, another SWAT team  member saw the heavyset            man  enter  the  gray  Olds.    This  agent  identified  what            previously had been described  as a "red bag" over  the man's            shoulder as a red-checked hood attached to his coat.                                         -12-                                          12            in a vehicle  located just  inside the entrance  to the  Ames            mall.   Agent  Fallon, who  would  ultimately assist  in  the            actual  arrest of  Meade,  had a  direct  view of  the  three            passengers  in the  vehicle, and he  recognized two  of them,            Lanoue and Cole, from  previously furnished photographs.  The            gray Olds then left the parking area.                      Around  11:35  a.m.  or 11:40  a.m.,  Agent  Newton            observed an  unmarked armored van approach  and park directly            in  front of the Ames store.  A uniformed courier immediately            exited  the  van, entered  the  store and  walked  toward the            store's  main  business office.    Shortly thereafter,  Agent            Newton  received  a  communication  that the  gray  Olds  had            reentered the  Ames mall parking area and  was heading toward            the Ames store.  About that time, Agent Fallon heard the same            or a  similar transmission, and  that an  individual who  had            been seen  in the gray Olds  was now in a  brown Pontiac that            had entered the parking area.7  Agent  Fallon then personally            observed  the gray  Olds and  recognized its  two passengers,            Lanoue  and Cole.  Agent  Newton observed the  gray Olds pull            into a parking space, and noticed only two people inside.                        At   approximately   11:45  a.m.,   Agent  Newton            observed a  passenger exit the gray Olds,  and recognized him            from  previously  reviewed  photographs  as  Lanoue.   Lanoue                                            ____________________            7.  Agent Fallon  had not  heard the  transmission concerning            the  earlier observation  of the  brown  car behind  the Ames            store.                                         -13-                                          13            walked  toward the  armored  van, looking  over his  shoulder            toward the  area of the Ames  store in which  the courier had            entered.   At that  point, Agent  Newton, via  radio, advised            that he along with other agents would arrest Lanoue, directed            other agents in his vehicle to arrest the remaining person in            the gray Olds, and ordered the other SWAT units to locate the            brown car and arrest the third man.                      Upon hearing the  arrest order, Agent Fallon  drove            his  vehicle a  short distance  through the parking  area and            came  upon  the third  individual,  who was  exiting  a brown            Pontiac.   With  other agents  already  on the  scene,  Agent            Fallon  ordered the  man to  the ground,  advised him  he was            being arrested  by the FBI, handcuffed him  and searched him.            During the  search, Agent Fallon  found a fully  loaded five-            shot  .38 caliber pistol in  the suspect's coat  pocket.  The            person subsequently was identified as Patrick Meade.                      3.  Analysis                      ____________                      Meade   argues  that  Agent  Newton  did  not  have            sufficient  information to  order  the agents  to locate  and            arrest  the occupant of the brown vehicle.  He contends that,            even  assuming  the existence  of  probable  cause to  arrest            Lanoue and  Cole, the agents lacked probable  cause to arrest            him  simply  because he  happened to  be  sitting in  a brown            vehicle.  We disagree.                                         -14-                                          14                      Preliminarily,  we  leave undisturbed  the district            court's   conclusion   that   the   agents,   through   their            observations,   confirmed   the  informant's   tip  regarding            specific facts surrounding  the suspected attempted  robbery,            and that this confirmation  legitimately supported a  finding            of  probable cause.8  The tip  specifically identified two of            the attempted-robbery participants,  indicated the  existence            of  at  least one  additional  unidentified  participant, and            specified one  of  the vehicles  to  be used.   Many  of  the            activities  that occurred throughout the morning corroborated            the informant's story: the use of several vehicles, including            the nearby  positioning of the  pickup truck and  the meeting            with the brown vehicle; the suspects' apparent casing of  and            waiting  at the Ames mall;  the suspects' return  to the mall            after the armored van's arrival; and Lanoue's approach toward            the van.                      With   regard   to   Meade's   specific   appellate            challenges,   we  find  that  Agent  Newton  had  information            sufficient  to order the agents  to locate the  brown car and            arrest  the third  man (Meade).    We acknowledge  that Agent            Newton  admitted that  he  did not  recall any  communication            about the  brown vehicle  entering  the parking  lot at  that                                            ____________________            8.  See Draper v. United States, 358  U.S. 307, 312-14 (1959)                ___ ______    _____________            (finding probable  cause to arrest where  informer's detailed            tip was verified by  police observations of corroborating but            otherwise innocent conduct).                                         -15-                                          15            time,  and  that  he   essentially  guessed  that  the  third            individual  would be found in it.  Nevertheless, we find that            Agent Newton  formulated a reasonable arrest  order that took            into account both his own personal observations and the facts            communicated to him by  other agents.  He knew  the following            information: at least one  additional individual was involved            in  the scheme, a brown  vehicle connected with the operation            had been seen behind the Ames store less than one hour before            the arrest,9 an individual  who had exited the brown  car had            entered  the gray Olds, and  the gray Olds  had left the Ames            mall parking  area with  three passengers (all  identified by            name  or  description), but  following  the  entrance of  the            armored van, reentered  with only two  passengers.  As  Agent            Newton testified, "I  knew there was a  third individual that            we didn't have  a location for  so I gave  the directions  to            locate the  brown vehicle  and arrest  the individual in  the            brown vehicle."                      In the context of  the arrest order, Agent Newton's            arrest signal was not,  as Meade would have us  believe, some            vague  directive to locate  any brown car  and arrest whoever            might  be in  it.   Rather, the arrest  order focused  on the                                            ____________________            9.  Although Meade  argues that  Agent Newton knew  the brown            car had  left the  area behind  the Ames  store, we will  not            charge  Agent   Newton  with  facts  he  specifically  denied            knowing.  See  United States  v. Zurosky, 614  F.2d 779,  786                      ___  _____________     _______            (1st  Cir.  1979)  (declining to  apply  collective-knowledge            principle to impute knowledge to one officer who specifically            denied knowing exculpatory fact known by another officer).                                         -16-                                          16            participants in the robbery conspiracy,  directing the agents            to locate the brown car and arrest "the third man" about whom                      ___                       ___            descriptive communications had been exchanged that morning.10            Under the applicable totality-of-the  circumstances approach,            see United  States v. Uricoechea-Casallas, 946  F.2d 162, 165            ___ ______________    ___________________            (1st  Cir. 1991),  we  conclude that  Agent  Newton gave  the            arrest order upon probable cause, which the Supreme Court has            characterized  as   "a  fluid  concept  --   turning  on  the            assessment of probabilities  in particular factual contexts,"            Illinois v. Gates, 462 U.S. 213, 232 (1983).11            ________    _____                      Under  the  fellow officer  rule,  we impute  Agent            Newton's knowledge  of facts  amounting to probable  cause to            Agent  Fallon, the arresting officer.  See Burns, 907 F.2d at                                                   ___ _____                                            ____________________            10.  We  reject  Meade's  perfunctory  contention   that  the            apprehension of other  persons in  a brown  car that  morning            near the site  of his  arrest belies the  finding that  Agent            Newton  had probable  cause to  give the  arrest order.   The            district court did  not address this  issue, and our  careful            review  of the  record  reveals that,  although occupants  of            another brown  vehicle were detained, none  of the testifying            agents knew  any details regarding the  circumstances of that            detention.  On appeal,  the government claims that the  other            brown  vehicle  had driven  over a  curb  and appeared  to be            attempting  to  flee the  scene.   In  the absence  of record            evidence supporting either that  claim or Meade's  suggestion            that  the detention was  a direct response  to Agent Newton's            faulty  arrest order, we, like  the district court, assign no            significance to this event.            11.  See also Ornelas v. United States, 116 S. Ct. 1657, 1661                 ___ ____ _______    _____________            (1996) (explaining  that probable  cause is a  "common sense,            nontechnical conception[]  that deal[s] with 'the factual and            practical considerations of everyday life on which reasonable            and prudent men, not legal technicians, act'" (quoting Gates,                                                                   _____            462  U.S. at  231  (additional quotation  marks and  citation            omitted)).                                         -17-                                          17            236 n.7.   The record also  establishes, however, that  Agent            Fallon individually had  sufficient information,  independent            of Agent Newton's  knowledge, to arrest Meade.   Agent Fallon            had  been briefed earlier that  morning that, as  a SWAT team            member, he might be required  to "interdict" an armed robbery            of an armored  courier vehicle.   He had  also been  provided            with  photographs  of Lanoue  and  Cole,  and  was  in  radio            communication with the other SWAT members on the scene.  That            morning,  Agent Fallon personally  observed Lanoue, Cole, and            the  person  later identified  as  Meade,  in the  previously            identified  gray   Olds.     Subsequently,   he  received   a            transmission that an individual who had been seen in the gray            Olds had  entered the parking area in a brown Pontiac, and he            observed the gray Olds with only Lanoue and Cole inside.                      Upon  hearing the  arrest  order --  to locate  the            brown  car and arrest the third man -- Agent Fallon possessed            sufficiently  particularized knowledge  to effect  the arrest            order  specifically as to Meade:  he knew what  the third man            looked  like and had information that the  man was in a brown            Pontiac in  the parking area.  In other words, at the time of            the arrest, the facts and circumstances known to Agent Fallon            (albeit somewhat  different facts  than those known  to Agent            Newton)  were  sufficient  to  warrant  a reasonably  prudent            person  to  believe that  Meade  was  committing an  offense.            Contrary  to Meade's  suggestion, Meade  was not  simply some                                         -18-                                          18            unfortunate who happened to be sitting in a brown  car in the            parking lot that morning.12                      Meade's final contention is that, even assuming  he            associated with Cole and Lanoue on the morning of his arrest,            his "mere presence" in their company "a substantial period of            time before  his arrest" did  not provide probable  cause for            his arrest.  We disagree.  On the morning of Meade's  arrest,            agents observed: a brown vehicle parked next to the gray Olds            behind the Ames store;  Meade exiting the gray Olds  in front            of the Ames  store then  returning to the  vehicle some  time            later; Meade riding around  with Lanoue and Cole in  the gray            Olds;  and Meade sitting in a brown vehicle near the location            and at the time of the suspected attempted robbery.  While "a                                            ____________________            12.  Our  conclusion is  unchanged by  the indication  in the            record  that  other  FBI agents  may  have  begun the  arrest            process before  Agent Fallon  found Meade, even  though Agent            Fallon ordered Meade  to the  ground, told him  he was  under            arrest, and handcuffed  and searched him.   Even viewing  the            evidence in  the light  most favorable  to Meade,  when Agent            Fallon  came upon Meade,  Meade had  just exited  his vehicle            and,  at most,  had begun  to drop  to his  knees.   On these            facts, regardless  of the presently unknown  knowledge of the            other agents (none testified  at the suppression hearing), it            is  apparent  that Agent  Fallon  would  have imminently  and            lawfully discovered and arrested Meade.  Cf. United States v.                                                     ___ _____________            Procopio,  88  F.3d  21,   27  (1st  Cir.)  (explaining  that            ________            otherwise unlawful search may  be upheld where the government            proves "by a preponderance of  the evidence that the evidence            would  inevitably  have  been discovered  by  lawful  means")            (citing  Nix v.  Williams, 467 U.S.  431, 444  (1984)), cert.                     ___     ________                               _____            denied,  117 S. Ct. 620 (1996), and  cert. denied, 117 S. Ct.            ______                          ___  _____ ______            1008 (1997);  United States v.  Ragsdale, 470 F.2d  24, 30-31                          _____________     ________            (5th Cir. 1972) (upholding  vehicle search by officer lacking            probable cause  where partner  officer on scene  had probable            cause  and search  "would  have almost  instantaneously  gone            forward" under that officer's direction).                                         -19-                                          19            person's mere propinquity  to others independently  suspected            of criminal  activity does  not, without more,  give rise  to            probable cause to  search that person,"   Ybarra v. Illinois,                                                      ______    ________            444  U.S. 85,  91 (1979),  these facts  reveal "substantially            more  than   a  momentary,  random,  or  apparently  innocent            association between [Meade] and the known criminal activity."            United States v.  Martinez-Molina, 64 F.3d 719, 727 (1st Cir.            _____________     _______________            1995).13  We agree with the district  court's conclusion that            the  agents'  "observations  gave  them  a  sound  basis  for            concluding that the  large man  in the  red-hooded blue  coat            sitting  in the brown car  was a participant  with Lanoue and            Cole in the robbery."                      Thus,  we conclude  that  the  agents had  probable            cause  to arrest  Meade, and,  therefore, that  they lawfully            seized the  firearm found during  the search incident  to his            arrest.  See Uricoechea-Casallas,  946  F.2d at  165 ("If  an                     ___ ___________________            arrest  is lawful,  the  arresting officers  are entitled  to            search the individual apprehended pursuant to that arrest.").                                         II.                                         II.                                         ___                                   Speedy Trial Act                                   Speedy Trial Act                                   ________________                                            ____________________            13.  See also  Martinez-Molina, 64  F.3d at 729  (noting that                 ___ ____  _______________            "officers  in the field" are not required to "ignore the fact            that 'criminals rarely welcome innocent persons  as witnesses            to  serious crimes  and  rarely seek  to perpetrate  felonies            before  larger-than-necessary  audiences'") (quotation  marks            and citation omitted).                                         -20-                                          20                      Meade contends that by virtue of his initial arrest            and federal  indictment in  Rhode Island on  the same  charge            underlying this conviction,  the instant proceedings violated            the Speedy Trial  Act.  By  way of context,  we describe  the            procedural background  underlying his  argument.  As  we have            said,  federal agents  first  arrested  Meade in  Bellingham,            Massachusetts  on  December 23,  1993.    On  that  day,  the            government issued  out  of the  District  of Rhode  Island  a            complaint that,  inter alia, charged Meade with being a felon                             _____ ____            in  possession  of  a  firearm  in  violation  of  18  U.S.C.              922(g)(1).  On  January 5,  1994, a federal  grand jury  in            Rhode Island returned an indictment charging Meade in five of            seven  counts,  including   the  felon-in-possession   count,            conspiracy,   attempted  robbery,  and   using  and  carrying            firearms during and in relation to a crime of violence.                      In July 1994, Meade  moved to dismiss the felon-in-            possession count  on the  grounds of improper  venue, arguing            that the government had no evidence that he had possessed the            firearm in Rhode  Island.14  In  August 1994, the  government            also moved to dismiss the felon-in-possession count "in order            that  charges in that count may be prosecuted in the District            of Massachusetts."  On August 16, 1994, the federal  district                                            ____________________            14.  Although  Meade, Lanoue  and Cole  were arrested  at the            site of  the attempted  robbery in Massachusetts,  it appears            that  the  government prosecuted  the  case  in Rhode  Island            because  many of  the preparatory  activities in  the robbery            plan occurred there.                                         -21-                                          21            court   in   Rhode  Island   dismissed   the   count  without            prejudice.15   On November  4, 1994, a  Rhode Island  federal            jury acquitted Meade of the remaining counts.                      More than nine months later, on August 16, 1995,  a            federal  grand jury  in Massachusetts  indicted Meade  on one            felon-in-possession count  based upon  the December  23, 1993            events.  His arrest on this indictment occurred on August 23,            1995.  The district court denied Meade's subsequent motion to            dismiss the indictment  on his  claim of a  Speedy Trial  Act            violation.                      Meade now  argues that his December  1993 arrest in            Bellingham, Massachusetts  was "within the  sole geographical            jurisdiction of  the District of Massachusetts"  and that, in            the  absence   of  evidence  that  he   possessed  a  firearm            elsewhere, the federal  district court  in Massachusetts  had            exclusive  "jurisdiction" over the  prosecution of the felon-            in-possession charge.  Thus,  Meade reasons, the Rhode Island            proceedings on that count "were a nullity" and the failure to            indict him in Massachusetts within thirty days of his initial            December 23, 1993 arrest  violated the express provisions of,            and purposes behind, the Speedy Trial Act, 18 U.S.C.    3161-            3167.   Meade's  argument is somewhat  novel and  it presents            questions of law which we review de novo.   See United States                                             __ ____    ___ _____________                                            ____________________            15.  The  record does  not clearly  reveal whether  the court            dismissed   the  count   in  response   to  Meade's   or  the            government's motion, or perhaps, on its own motion.                                         -22-                                          22            v. Rodriguez, 63  F.3d 1159, 1162  (1st Cir.), cert.  denied,               _________                                   _____  ______            116 S. Ct. 681 (1995).                      The  Speedy   Trial  Act,  which   "insures  speedy            indictments  as  well as  speedy  trials,"  United States  v.                                                        _____________            Samples,  713 F.2d  298, 301  (7th Cir.  1983), provides,  in            _______            pertinent part:  "Any information  or indictment  charging an            individual  with the commission of  an offense shall be filed            within thirty days from the date on which such individual was            arrested  . . . in  connection with such  charges," 18 U.S.C.              3161(b).  The apparent purpose of the thirty-day arrest-to-            indictment  rule "is to ensure that the defendant is not held            under  an  arrest warrant  for  an  excessive period  without            receiving formal  notice of the charge against  which he must            prepare  to defend himself."  United States v. Berry, 90 F.3d                                          _____________    _____            148, 151 (6th Cir.) (citing United States v. McCown, 711 F.2d                                        _____________    ______            1441, 1447 (9th  Cir. 1983)),  cert. denied, 117  S. Ct.  497                                           _____ ______            (1996).                      Meade first  argues that  Article  III, Section  2,            clause 3 of the United States Constitution16 and Federal Rule            of  Criminal  Procedure  1817   precluded  the  Rhode  Island                                            ____________________            16.  "The   trial  of   all  Crimes,   except  in   Cases  of            Impeachment, shall be by  Jury; and such Trial shall  be held            in  the  State  where   the  said  Crimes  shall  have   been            committed."  U.S. Const. art. III,   2, cl. 3.            17.  "Except as  otherwise permitted  by statute or  by these            rules,  the prosecution shall be  had in a  district in which            the offense was committed."  Fed. R. Crim. P. 18.                                         -23-                                          23            district court's exercise of jurisdiction  over the felon-in-            possession   charge  against   him.     We  disagree.     The            Constitution and Rule 18 protect a criminal defendant's venue            --  not jurisdictional  --  rights.    See United  States  v.                                                   ___ ______________            Josleyn,  99  F.3d 1182,  1189  n.7  (1st Cir.  1996),  cert.            _______                                                 _____            denied, 117 S. Ct. 959 (1997); see also id. ("Venue 'concerns            ______                         ___ ____ ___            only the  place  where  the case  may  be  tried[,]'  whereas            jurisdiction  'has to  do with  the authority  or power  of a            court to try a case.'") (quoting Wayne R.  LaFave & Jerold H.            Israel, Criminal Procedure   16.1, at 334 (1984 & Supp. 1991)                    __________________            (alteration in  original)).  We have  further recognized that            venue  is  a waivable  personal  privilege  designed for  the            benefit  of the defendant.  See United States v. Santiago, 83                                        ___ _____________    ________            F.3d 20, 24 (1st Cir. 1996).  As such, the constitutional and            statutory  venue  provisions  are  not  restrictions  on  the            court's jurisdiction.18                      Thus,  at most,  venue,  but not  jurisdiction, was            questionable  in Rhode  Island.   Given  that criminal  venue            rights are  waivable, had  Meade consented to  proceedings in            Rhode Island  on the  felon-in-possession count in  the first            indictment, the  disposition of those proceedings  would have            been  "valid" as a matter  of venue as  well as jurisdiction.                                            ____________________            18.  See 2 Charles A. Wright, Federal Practice and Procedure,                 ___                      ______________________________              306, at 219-20  (1982) (citing cases);  see also 18  U.S.C.                                                      ___ ____              3231  (providing,  without  geographical  limitation,  that            federal district  courts have original  jurisdiction "of  all            offenses against the laws of the United States").                                         -24-                                          24            It follows  that although  the first indictment  arguably was            returned  in  an  improper  venue for  prosecution,  for  the            purposes of the Speedy Trial Act,  it was not "a nullity" for            lack of jurisdiction.19                      Having  established  that Meade's  "jurisdictional"            challenge to  the Rhode  Island proceedings on  the felon-in-            possession  count is  unavailing  and that  the Rhode  Island            indictment was filed within the Speedy Trial Act's thirty-day            rule, we  turn to the effect of the Massachusetts indictment,            returned   approximately   one-and-a-half  years   after  his            original  arrest.  Meade  suggests that the  Speedy Trial Act            required his  subsequent indictment  also to have  been filed            within thirty days  from the  December 23, 1993  arrest.   We            disagree.                      The first indictment, returned January 5, 1994, was            filed well within  thirty days from Meade's December 23, 1993            arrest.   Manifestly, the  return of that  indictment stopped            the thirty-day  arrest-to-indictment time limitation.   Based            on our  previous holding  that the thirty-day  limit "applies                                            ____________________            19.  Meade  does not argue that improper venue bears upon the                                                     _____            validity  of the  indictment for  Speedy Trial  Act purposes.            Because  venue  objections  may  be  waived,  we  doubt  that            improper  venue  would  invalidate an  indictment  for  these            purposes.  Moreover, even assuming the "nullity" of the first            indictment, there exists support for the proposition that its            timely  return   would  satisfy   the  thirty-day  limit   of              3161(b).  See  United States  v. Perez, 845  F.2d 100,  102                        ___  _____________     _____            (5th Cir.  1988) (stating that "[s]ection  3161(b) applies to            'any' indictment, including one that subsequently is found to            be defective or invalid").                                         -25-                                          25            only  where, at the time of indictment, the charge upon which            a defendant  was  arrested and  upon  which a  complaint  was            issued is still pending," United States v. Krynicki, 689 F.2d                                      _____________    ________            289, 293-94 (1st Cir. 1982), we disregard the period from the            dismissal of the charge on August 16, 1994, to the initiation            of  the  Massachusetts  proceedings.     Because  the  second            prosecution commenced  with an indictment, not  an arrest, it            simply  did  not  trigger     3161(b)'s  arrest-to-indictment            limitation.  See United  States v. Gurary, 860 F.2d  521, 528                         ___ ______________    ______            (2d Cir. 1988); Samples,  713 F.2d at 303.   We conclude that                            _______            the return  of the  indictment in Massachusetts  more than  a            year-and-a-half  after the  original arrest  did  not violate              3161(b).                      This   result  does  not   frustrate  the  purposes            animating the Speedy Trial Act.  In enacting the Speedy Trial            Act, Congress acknowledged that a person subject to prolonged            pre-trial  delays faces  a  number of  debilitating  factors,            including "the disruption of family life, loss of employment,            anxiety, suspicion, and public  obloquy."  Krynicki, 689 F.2d                                                       ________            at 294.  After dismissal of formal charges, however, any such            strain "is no greater  than it is upon anyone  openly subject            to a  criminal investigation."   United States  v. MacDonald,                                             _____________     _________            456 U.S. 1, 9 (1982)  (involving Sixth Amendment speedy trial            guarantee), quoted in Krynicki, 689 F.2d at 294.  While Meade                        ______ __ ________            may  be disappointed that the government successfully brought                                         -26-                                          26            these  proceedings after  his  acquittal in  Rhode Island  on            related charges,  he  cannot complain  that  the  proceedings            thwarted the policies of the Speedy Trial Act.20                                         III.                                         III.                                         ____                              Defense Theory Instruction                              Defense Theory Instruction                              __________________________                      Meade  argues that  the district  court erroneously            failed  to instruct  the  jury on  his  theory of  the  case.            Specifically,  he challenges  the court's  refusal to  give a            requested   instruction  touching   upon   his  "intent"   in            possessing  the  firearm  for   the  purposes  of  18  U.S.C.                                            ____________________            20.  Meade further asserts  that the "piecemeal  prosecution"            of  this  case  violates  the  United  States  Department  of            Justice's  policy "that  several  offenses arising  out of  a            single transaction  should be alleged and  tried together and            should  not be  made  the basis  of multiple  prosecutions, a            policy  dictated  by  considerations  both   of  fairness  to            defendants  and of  efficient and  orderly  law enforcement."            Petite  v.  United States,  361 U.S.  529,  530 (1960).   The            ______      _____________            Justice Department's so-called "Petite policy,"  which guards                                            ______            against  various dual  or  subsequent prosecutions,  does not            help Meade given our  repeated holding that the policy  "does            not  confer  substantive  rights  on   criminal  defendants."            United  States v. Gary, 74  F.3d 304, 313  (1st Cir.) (citing            ______________    ____            cases), cert. denied, 116 S. Ct. 2567 (1996).                    _____ ______                      Finally,  Meade  perfunctorily  complains that  the            "government should not [have been] permitted to hedge against            an  adverse verdict"  by  seeking this  conviction after  the            acquittal in Rhode Island.   To the extent Meade  suggests an            unconstitutional pre-indictment delay, his  conclusory plaint            falls  well short  of  the requisite  showing of  significant            prejudice to him and intentional bad-faith  delay on the part            of the government.  See United States v. Crooks, 766  F.2d 7,                                ___ _____________    ______            11 (1st Cir. 1985).  As such, we deem this contention waived.            See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).            ___ _____________    _______                                         -27-                                          27              922(g)(1).21   "Ordinarily, a  defendant is entitled  to an            instruction on  his theory  of  the case  as  long as  it  is            legally valid and there is sufficient evidence, viewed in the            light most favorable to the defendant, to permit a reasonable            juror to credit the defendant's theory."  Josleyn, 99 F.3d at                                                      _______            1194.   Nevertheless, the court need  not adopt the requested            instruction  verbatim if  the  charge as  a whole  adequately            covers  the  defense  theory.    See  id.; United  States  v.                                             ___  ___  ______________            Montanez, 105 F.3d 36, 39 (1st Cir. 1997).            ________                      At trial, Meade testified to the following  events,            which we  take as true for  the purposes of this  appeal.  In            early December  1993, he went  to the home of  a friend, Paul            Bartel, who  had just  threatened  to commit  suicide.   When            Meade arrived at Bartel's  residence, Bartel was playing with            a gun.   Meade took the  gun from Bartel in  order to prevent            Bartel from harming himself,  and placed the gun in  the back            seat of his (Meade's) car.   He forgot about the gun  and did            not  touch it  again  until  shortly  before  his  arrest  on            December  23, when he spotted it in  his car and placed it in            his pocket.                      At the  close of  the evidence, the  district court            instructed the  jury on the concept of  actual possession, as            well as constructive possession substantially in  accord with                                            ____________________            21.  18 U.S.C.   922(g)(1) makes  it unlawful for a convicted            felon  to "possess in  or affecting commerce,  any firearm or            ammunition."                                         -28-                                          28            our  discussion in United States v. Rogers, 41 F.3d 25, 29-30                               _____________    ______            (1st Cir.  1994)  (explaining the  meaning  of  "constructive            possession"  for purposes  of   922(g)).   The  court further            distinguished "ownership" from  possession, instructing  that            the  government  need  not  prove Meade's  ownership  of  the            firearm.  With respect  to the requisite mens rea,  the court                                                     ____ ___            explained  that the  government must  have proven  that Meade            "knowingly" possessed the firearm;  that is, "he possessed it            voluntarily and purposefully and not by accident or mistake."            Finally, the court told  the jury that the purpose  for which            Meade possessed  the firearm  was irrelevant to  the question            whether he committed the offense.22                      Meade  requested the  court  to  instruct the  jury            that,  in order  to  prove the  "knowing  possession" of  the            firearm, the government must establish that he "possessed the            firearm with the intent to exercise dominion and control over            it," and that "not every incidental contact  with the firearm            would automatically compel  [the jury] to find that  . . . he            possessed  .  . .  it as  alleged  in the  indictment."   For            support, Meade cites the  unpublished case23 of United States                                                            _____________                                            ____________________            22.  Because  we  ultimately  find  that   Meade's  requested            instruction is incorrect as  a matter of law, and  because he            does  not otherwise  appeal the  court's charge, we  need not            pass on the accuracy of the charge as given.            23.  Our  Local Rules  prohibit the  citation of  unpublished            opinions, which are bereft  of any precedential force, except            in related cases.  See 1st Cir. R. 36.2(b)6.                               ___                                         -29-                                          29            v. DiNovo, 57 F.3d 1061 (1st Cir.) (TABLE), 1995 LEXIS 14622,               ______            1995 WL 354829, cert. denied,  116 S. Ct. 404 (1995).   Meade                            ____  ______            further asked the court to  instruct the jury that "dominion"            and "control" are "overlapping concepts" and that "[d]ominion            . . .  is generally defined as  'perfect control in  right of            ownership.'"   Rogers, 41 F.3d at 29, 30 (quoting Black's Law                           ______            Dictionary 436 (5th ed. 1979)).                      Meade  informs  us that  his  "defense  theory" was            that, because he did not have the intent to exercise dominion            and  control  over the  firearm, he  did  not possess  it for            "criminal  purposes"  and  thus,  he  lacked  the  "requisite            intent" to possess.  He complains that the court's failure to            charge  the  jury  as  requested  deprived  the  jury  of the            opportunity  to consider  the circumstances  under which  the            firearm was  found on his person.   He contends that the jury            should have been  able to  give due weight  to his  "prudent"            decision  first to take the  firearm from Bartel  and then to            remove  it from his car  ("rather than leave  it there") upon            rediscovering it.                      We  are  unpersuaded  by  Meade's  highlighting  of            choice  phrases from  the  unpublished DiNovo  case and  from                                                   ______            Rogers's discussion of constructive possession24 to fashion a            ______            novel  and somewhat heightened  definition of possession that                                            ____________________            24.  See Rogers, 41 F.3d at 30 (explaining that,  under trial                 ___ ______            court's  instructions, "dominion" encompassed  the concept of            control).                                         -30-                                          30            approximates  ownership.25   His  attempt to  mold his  novel            definition to suit his  "absence of criminal purpose" defense            theory is a  further stretch.   Viewing the  evidence in  the            light  most favorable  to Meade, we  conclude that  his "good            purpose" in taking and retaining  possession of the gun would            not  have constituted a valid  defense as a  matter of law.26            Therefore,  we find no error  in the court's  refusal to give                                            ____________________            25.  That  Meade assertedly did not own the gun in his pocket            does not  vitiate his possession of it for   922(g) purposes.            See  United States v. Hubbard,  61 F.3d 1261,  1272 (7th Cir.            ___  _____________    _______            1995),  cert. denied, 116 S. Ct. 1268 (1996).  Ownership, for                    _____ ______            purposes of constructive possession analysis, "may be  highly                        _______________________            relevant  where   the  authority   to  exercise   control  is                                                              _______            disputed."   Rogers,  41 F.3d  at 30  (emphasis added).   The                         ______            presence of  the gun  in Meade's  coat pocket,  however, more            accurately  triggers  the  concept  of  actual,  rather  than            constructive,  possession.    See  United  States  v.  Zavala                                          ___  ______________      ______            Maldonado, 23  F.3d 4, 7  (1st Cir. 1994)  (describing actual            _________            possession as "immediate, hands-on physical possession").  In            any event, under either  an actual or constructive possession            rubric,  Meade's  own testimony  dispensed  with any  dispute            regarding his control of the gun; he admitted that he saw the            gun in his car, and, unencumbered, picked it up and placed it            in his pocket.            26.  We note that Meade did not  (and does not) claim that he            was entitled to an  instruction in the nature of  a necessity            or justification  defense.   See United  States v.  Gomez, 92                                         ___ ______________     _____            F.3d  770, 774  (9th  Cir. 1996)  (explaining application  of            justification  defense  in felon-in-possession  case) (citing            cases); United States v. Lomax, 87 F.3d 959, 961-62 (8th Cir.                    _____________    _____            1996) (same); see also  United States v. Perez, 86  F.3d 735,                          ___ ____  _____________    _____            737 (7th  Cir. 1996) ("The  defense of necessity  will rarely            lie in  a felon-in-possession  case unless the  ex-felon, not            being engaged  in criminal  activity, does nothing  more than            grab a gun with  which he or another is being threatened (the            other  might  be  the   possessor  of  the  gun,  threatening            suicide)"); United  States v.  Newcomb, 6 F.3d  1129, 1137-38                        ______________     _______            (6th Cir.  1993) (allowing justification  defense instruction            where defendant removed gun  from person threatening to shoot            another, and briefly handled it to remove ammunition).                                         -31-                                          31            Meade's requested instruction on his theory of the case.  See                                                                      ___            United  States v. Rose, 104  F.3d 1408, 1416  (1st Cir. 1997)            ______________    ____            (explaining  that such  refusal  warrants reversal  only  if,            inter   alia,   defendant's    requested   instruction    was            _____   ____            "substantively correct").                                         IV.                                         IV.                                         ___                   Sentence Enhancement Based On Acquitted Conduct                   Sentence Enhancement Based On Acquitted Conduct                   _______________________________________________                      At sentencing, the district court  found that Meade            possessed the firearm in connection with criminal conduct, of            which the jury in Rhode Island acquitted him, surrounding the            attempted robbery  of the  armored courier car.   The  court,            therefore, increased  his base  offense level by  four levels            pursuant to U.S.S.G.   2K2.1(b)(5).27  Citing dicta in United                                                                   ______            States  v. Lanoue, 71 F.3d 966, 983-84 (1st Cir. 1995), Meade            ______     ______            argues (as he did below) that,  as a matter of law, the court                                            ____________________            27.  Section 2K2.1(b)(5) provides, in pertinent part:                      If  the defendant  used or  possessed any                      firearm or ammunition in  connection with                      another felony offense;  or possessed  or                      transferred  any  firearm  or  ammunition                      with  knowledge,  intent,  or  reason  to                      believe   that  it   would  be   used  or                      possessed  in   connection  with  another                      felony offense, increase by 4 levels.            U.S. Sentencing Guidelines Manual   2K2.1(b)(5) (Nov. 1995).                                         -32-                                          32            could  not  constitutionally increase  his sentence  based on            acquitted conduct.28                      Meade's  claim has  no  force because  the  Supreme            Court recently abrogated the dicta in Lanoue and held "that a                                                  ______            jury's verdict  of acquittal does not  prevent the sentencing            court  from  considering  conduct  underlying  the  acquitted            charge,  so long  as  that  conduct  has  been  proved  by  a            preponderance of the evidence."  United States  v. Watts, 117                                             _____________     _____            S.  Ct. 633,  638 (1997);  see  id. at  634 n.1.   Thus,  the                                       ___  ___            sentencing  court   did  not  err   in  considering   conduct            underlying charges of which Meade had been acquitted.                      Meade  did not  challenge  either below  or in  his            appellate  brief the  weight of  the court's  factual finding            that he  possessed the gun  in connection with  the attempted            robbery.  At oral argument, however, Meade's counsel raised a            related claim:  that  Watts mandates  an evidentiary  hearing                                  _____            before a  court  may sentence  for  acquitted conduct.    The            assertion  is  wrong.    Although  Watts  explains  that  the                                               _____            sentencing guidelines require  facts pertinent to  sentencing            to be proven by a  preponderance of the evidence, see 117  S.                                                              ___            Ct.  at 637,  it  does not  set  forth a  requirement  that a                                            ____________________            28.  In Lanoue,  a panel of  this circuit expressed  in dicta                    ______            its  belief   in   the  unconstitutionality   of   permitting            imprisonment on  the basis  of acquitted conduct,  and stated            that  the  guidelines'  apparent  requirement  that  a  court            sentence for  such conduct  "utterly lacks the  appearance of            justice."  71 F.3d at 984.                                         -33-                                          33            district court hold an  evidentiary hearing to establish such            facts,  whether  or  not  they  encompass acquitted  conduct.            Moreover, we do not  mandate such a hearing in  this circuit.            See United States v.  Tardiff, 969 F.2d 1283, 1286  (1st Cir.            ___ _____________     _______            1992) ("It  is clear  that a  defendant is  not automatically            entitled  to a full-blown evidentiary hearing  at the time of            sentencing.").   Finally,  because Meade  did not  request an            evidentiary  hearing  to challenge  the facts  underlying the            Presentence  Report's  recommendation  to count the acquitted            conduct,29 he has relinquished  this final claim, such  as it            is,  on appeal.  See  id. (finding that  defendant waived the                             ___  ___            right to complain of the absence of an evidentiary hearing by            failing to request one).                                          V.                                          V.                                          __                                      Conclusion                                      Conclusion                                      __________                      For  the foregoing reasons,  we affirm the district                                                      ______            court's judgment in all respects.                                            ____________________            29.  The  district court  adopted the  statement  of relevant            conduct contained  in  the Presentence  Report which  largely            recounted the facts disclosed  during the suppression hearing            and additionally noted that a pair of handcuffs were found in            Meade's vehicle.                                         -34-                                          34
