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<pre>       [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] <br> <br>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1896 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                         THEODORE PERRY, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF RHODE ISLAND <br> <br>             [Hon. Mary M. Lisi, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Selya and Lynch, Circuit Judges. <br> <br>                      _____________________ <br> <br>    Geoffrey DuBosque for appellant. <br>    Thomas M. Gannon, Attorney, Department of Justice, with whom <br>Margaret E. Curran, United States Attorney, and Gerard B. Sullivan, <br>Assistant United States Attorney, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                          April 28, 1999 <br>                       ____________________

         Per Curiam.  Defendant-appellant, Theodore Perry, appeals <br>his conviction for possessing a firearm in violation of 18 U.S.C. <br> 922(g)(1).  We affirm in all respects. <br>         We set forth the facts as a reasonable jury could have <br>found them to be.  On July 3, 1997, uniformed Providence police <br>officer Anabel Bez was working in a marked police cruiser in <br>Providence's West End.  Bez received a call about two men who were <br>suspected of selling drugs.  Both were described as African- <br>American and wearing white T-shirts; one was wearing red pants, the <br>other blue pants.  In response to the call, Bez radioed Officer <br>Edward Gonzlez, met with him, and arranged to converge with him on <br>the Cranston-Dexter intersection. <br>         When Officer Bez arrived at the intersection, he saw the <br>two men who had been described in the call.  Perry was one of the <br>men, and Wesley Lucas was the other.  As Bez parked his cruiser on <br>Cranston, he saw Officer Gonzlez's cruiser coming towards him <br>along Cranston.  Gonzlez parked his cruiser nose-to-nose to <br>Bez's, directly in front of the two men. <br>         The men turned and began to walk away.  Officer Bez got <br>out of his car and told the men to stop.  Lucas stopped, but Perry <br>ran away.  Officer Gonzlez pulled his cruiser around the corner <br>onto Dexter Street and blocked Perry's escape. When Perry saw <br>Gonzlez blocking his path, he ducked into a clump of bushes and <br>discarded a handgun.  Gonzlez shouted, "Gun!", but Bez did not <br>hear him.  When Perry emerged from the bushes, he was directly in <br>front of Bez, who arrested him. <br>         Officer Bez drove the cruiser around the corner to <br>Officer Gonzlez's car.  Gonzlez went into the bushes and located <br>the discarded handgun.  When Bez joined him there, he showed Bez <br>the gun on the ground deep in the bushes.  As the two officers were <br>looking at the handgun, they heard the sound of breaking glass.  <br>Perry had kicked out the back window of Bez's cruiser, and was <br>running down Dexter Street.  Gonzlez chased him and recaptured him <br>immediately.  The officers called their sergeant and Detective <br>Robert Badessa to the scene.  Badessa took photographs of the scene <br>and seized the gun, a Bryco Jennings .380 caliber pistol. <br>         Following a jury trial in the United States District <br>Court for the District of Rhode Island, Perry was convicted of <br>possessing a firearm as a previously convicted felon.  The district <br>court sentenced him to a term of 77 months imprisonment to be <br>followed by a three year period of supervised release. <br>         Perry's first argument is that the prosecutor committed <br>reversible error in his closing argument by stating: (1) that the <br>defendant was a wife abuser, and (2) that the defendant testified <br>to a different version of the truth.  At first blush, these <br>comments seem to fall within the pale: the "wife abuser" reference <br>related to evidence of a prior conviction, and the second comment <br>appears sufficiently neutral to avoid classification as <br>impermissible vouching. <br>         Even if we assume arguendo the validity of the <br>defendant's assertions, we are constrained by the fact that the <br>defendant did not interpose a contemporaneous objection to these <br>statements during the course of the prosecutor's closing argument.  <br>Accordingly, we review only for plain error.  Error rises to this <br>level only when it "so shocking that it seriously affected the <br>fundamental fairness and basic integrity of the proceedings <br>conducted below."  United States v. Ortiz, 23 F.3d 21, 26 (1st Cir. <br>1994) (internal quotation marks and citations omitted). <br>         Here, the statements complained of fall far short of the <br>plain error threshold.  They do not in any way interfere with the <br>jury's ability to resolve the paramount issue in this case -- <br>whether Perry possessed a firearm.  Moreover, they were followed by  <br>instructions from the district court advising the jury: (1) that <br>statements by counsel are not evidence and are not to be considered <br>in reaching a verdict, and (2) that it is the responsibility of the <br>jury to weigh the credibility of witnesses.  In light of this fact, <br>and the overwhelming evidence of Perry's guilt, there is no basis <br>for this Court to conclude that the alleged erroneous statements by <br>the prosecutor in his closing argument resulted in a miscarriage of <br>justice meriting a reversal.  See United States v. Giry, 818 F.2d <br>120, 133 (1st Cir.), cert. denied, 484 U.S. 855 (1987). <br>         Perry's second argument is that he was denied his right <br>to a fair trial because the district court refused to divulge the <br>identity of, or conduct an in camera examination of, the informant <br>who called the police. <br>          We review a district court's decision not to force the <br>prosecution to divulge the identity of a confidential informant for <br>abuse of discretion.  See United States v. Lewis, 40 F.3d 1325, <br>1335 (1st Cir. 1994). In this context, the abuse of discretion <br>standard is quite deferential:  the district court's resolution of <br>a disclosure request should be upheld as long as it comports with <br>some reasonable rendition of the record.  See United States v. <br>Robinson, 144 F.3d 104, 106 (1st Cir. 1998). <br>         The Supreme Court first recognized a "tattler's <br>privilege" -- that is, a privilege to withhold the identity of an <br>informant -- in Roviaro v. United States, 353 U.S. 53 (1957).  See <br>Robinson, 144 F.3d at 106.  The privilege is designed to protect <br>the government's sources and to shield citizens who contribute <br>their knowledge to facilitate the prosecution of criminal acts. <br>Still, the privilege is not absolute.  In determining whether <br>justification for an exception exists, the nisi prius court must <br>balance the interests undergirding the privilege against the <br>accused's fundamental right to a fair trial, and, in doing so, must <br>take into account the full set of relevant circumstances -- <br>including the nature of the crime charged, the contours of the <br>defenses asserted, the available means of proving the charges and <br>defenses, and the significance of the informant's role.  See id. <br>         To further the policies behind the Roviaro rationale, the <br>trial court's analysis begins with a presumption favoring <br>confidentiality.  Thus, the defendant bears the burden of <br>persuasion to show that disclosure is necessary to mount an <br>adequate defense.  See id.  This burden is heavy, but not <br>insurmountable.  See id.  If, for example, the informant is the <br>sole participant, other than the accused, in the transaction <br>charged, or if the informant is the only person who is in a <br>position to amplify or contradict crucial testimony of government <br>witnesses, then the court may order disclosure.  See id. <br>         Here, Perry moved for disclosure of the identity of the <br>person who called Officer Bez on July 3, 1997, to tell him about <br>two African-American men suspected of selling drugs at the <br>Cranston-Dexter intersection.  At the hearing before the district <br>court, the prosecutor stated that a detective had interviewed the <br>informant and confirmed that the informant saw neither the chase of <br>Perry, nor his arrest, nor the discarding of the gun.  The district <br>court noted that the informant had called the police to report <br>suspected drug dealing, but the crux of the case was whether or not <br>Perry possessed a firearm.  Finding that the informant was akin to <br>a tipster, it denied Perry's motion to disclose the informant's <br>identity. <br>         In this instance, because the government's informant <br>neither participated in nor witnessed the events that inculpated <br>the defendant and led to his arrest, the informant is a mere <br>tipster.  See id.  Tipsters, as opposed to informants who are <br>active participants in the crimes charged, generally deserve <br>anonymity.  See United States v. Hemmer, 729 F.2d 10, 15 (1st Cir. <br>1984). The district court did not abuse its discretion in refusing <br>to force the government to divulge the informant's identity. <br>         Third, Perry argues that the district court committed <br>error in interpreting the Sentencing Guidelines to the extent that <br>Perry's sentence was imposed consecutively to his state sentence <br>for violating his state probation. <br>         Appellate review of a district court's application of the <br>Sentencing Guidelines involves a bifurcated inquiry.  We review de <br>novo a sentencing judge's assessment of a guideline's legal meaning <br>and scope, but review the district court's factfinding only for <br>clear error.  See United States v. Florence, 143 F.3d 11, 12 (1st <br>Cir. 1998).  Within certain limits, a district court's decision to <br>impose a concurrent or consecutive sentence is reviewed for abuse <br>of discretion.  See United States v. McCarthy, 77 F.3d 522, 536 <br>(1st Cir.), cert. denied, 117 S. Ct. 479 (1996). <br>         Sentencing Guidelines  5G1.3 governs the "Imposition of <br>Sentence on a Defendant Subject to an Undischarged Term of <br>Imprisonment."  Most importantly, application note 6 to  5G1.3 <br>provides in part that <br>                      [i]f the defendant was on federal or state <br>           probation, parole, or supervised release <br>           at the time of the instant offense, and <br>           has had such probation, parole, or <br>           supervised release revoked, the sentence <br>           for the instant offense should be imposed <br>           to run consecutive to the term imposed for <br>           the violation of probation, parole, or <br>           supervised release in order to provide an <br>           incremental penalty for the violation of <br>           probation, parole, or supervised release.  <br>           See  7B1.3 (Revocation of Probation or <br>           Supervised Release) (setting forth a <br>           policy that any imprisonment penalty <br>           imposed for violating probation or <br>           supervised release should be consecutive <br>           to any sentence of imprisonment being <br>           served or subsequently imposed). <br> <br>         Here, Perry was on state probation for a previous Rhode <br>Island offense at the time of his federal offense.  At the time of <br>his sentencing before the district court, his probation had been <br>revoked by the Rhode Island authorities.  Examining the application <br>note, the district court found it to be applicable, and sentenced <br>Perry to 77 months imprisonment to be served consecutive to his <br>state sentence for violation of his probation. <br>         The Supreme Court has stated that commentary to the <br>Sentencing Guidelines must be given "controlling weight unless it <br>is plainly erroneous or inconsistent with the regulation."  Stinson <br>v. United States, 508 U.S. 36, 45 (1993) (quotation marks and <br>citations omitted).  Nothing in the application note quoted above, <br>see U.S.S.G.  5G1.3 (Commentary, note 6), is contrary to the <br>Sentencing Guidelines.  The district court correctly followed the <br>application note, and Perry was properly sentenced to a federal <br>sentence to be served consecutive to his state term of <br>imprisonment. <br>         Affirmed.</pre>

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