

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                         

No. 97-1998

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                     STEPHEN F. KIVLEHAN,

                          Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. Morton A. Brody, U.S. District Judge]                                                               

                                         

                            Before

                    Boudin, Circuit Judge,                                                     

                Aldrich, Senior Circuit Judge,                                                         

                  and Lynch, Circuit Judge.                                                      

                                         

Walter  F.  McKee  with  whom  Lipman  &amp;  Katz  was on  brief  for                                                          
appellant.
Margaret D.  McGaughey,  Assistant  United States  Attorney,  with                                  
whom  Gail F.  Malone, Assistant  United States  Attorney, and  Jay P.                                                                              
McCloskey, United States Attorney, were on brief for appellee.                 

                                         

                      February 27, 1998

                                         

          ALDRICH, Senior  Circuit Judge.   Defendant Stephen                                                    

F. Kivlehan, sentenced  as an armed career  offender pursuant

to  U.S.S.G.   4B1.4(b)(3)(A), whose  conviction was under 18

U.S.C.   922(g)  for, as  a felon, being  in possession  of a

firearm,  appeals for  evidentiary  error;  for  not,  as  an

indigent,  being   provided  with  funds  for  a  psychiatric

examination prior to  sentencing; for the court's  refusal to

hold a competency hearing, and for  its adding a point to his

offense  level  for using  the firearm  in connection  with a

crime of violence.  We affirm.

                     Fingerprint Testing                                                    

          Defendant  was  arrested after  having  alerted his

neighbors  by the  noise of  a vigorous  sexual and  physical

assault on his  wife.  After receiving consent  to search the

premises, the police  found a revolver that  defendant's wife

adequately connected with  the incident, post.   Witnesses at                                                         

trial   testified  to  the  uniqueness  of  the  revolver,  a

specially  built  competition  pistol,  and  to  having  seen

defendant previously with  his hands on it.   However, it was

returned from  testing for  prints with  none of  defendant's

found.

          Over defendant's objection,  a police detective was

allowed to  testify that in  his twenty years  experience, it

was "very  rare" to  match positively a  known set  of prints

with those  found on a weapon -- in  fact, he could recall no

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case.    The  objection  made   was  hearsay.    This  is  an

interesting question.  The witness  was speaking from his own

experience,  but the  effect, perhaps, was  to vouch  for the

accuracy of past reports or the testing process itself.

          In   any   event,  this   whole   matter  was   not

prejudicial.  The revolver had a serial number.  It was noted

at the time of the arrest; the revolver at the trial  had the

same  number.  Also, four witnesses positively identified it,

including  both  its  prior  owner  as  well  as  defendant's

brother,  a professional gunsmith.   Of what  consequence the

absence of fingerprints?   Given such  overwhelming evidence,

any  error  in   admitting  the  detective's   testimony  was

harmless.  See  United States v. Bartelho, 129  F.3d 663, 670                                                     

(1st  Cir. 1997).    We pass  the question  whether defendant

himself first "opened the door" to this testimony.

                  Mental Competency Testing                                                       

          There was  no claim  that defendant  was unable  to

stand  trial,  or  that he  had  any  mental defect  defense.

However, after trial, defendant's counsel asked for funds for

psychiatric testing, pursuant to 18 U.S.C.   3006A(e)(1), and

later moved to determine  defendant's competency, pursuant to

18  U.S.C.   4241.    His  psychological  condition,  it  was

thought,  would be relevant to where  in the applicable range

he  should be sentenced and, also, whether downward departure

under U.S.S.G.    5K2.13 (diminished capacity)  could be had.

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Counsel's most  tangible basis  was the  fact that  defendant

would not  communicate with  him and  rejected all  his mail,

returned  unopened.  Apart  from that were  little fragments,

including general  comments from defendant's  mother and  his

probation   officer   about   his   apparent,   lay-described

"paranoia," and the argument that unless a test was made, how

could it be known that it was not needed?

          Whether  to   authorize  funds   for  psychological

testing is within the  trial court's discretion.   Cf. United                                                                         

States  v. Mateos-Sanchez,  864 F.2d  232,  239-40 (1st  Cir.                                     

1988) (investigative  expenses).  Refusal  is not  reversible

absent  clear and  convincing evidence  of  prejudice to  the

accused.  See United  States v. Canessa, 644 F.2d 61, 64 (1st                                                   

Cir. 1981).    A determination of competency  may be had when

there is reasonable  cause to believe that the defendant, due

to mental  defect,  is unable  to understand  the nature  and

consequences  of the  proceedings against  him  or to  assist

properly in his defense.   See 18 U.S.C.   4241.   To be able                                          

to  assist  in one's  defense  means  to  have a  "sufficient

present  ability  to  consult  with  [one's]  lawyer  with  a

reasonable degree of rational  understanding."  United States                                                                         

v. Lebron, 76  F.3d 29, 31 (1st  Cir.), cert. denied, 116  S.                                                                

Ct. 2537  (1996).   Whether to  hold a    4241  hearing is  a

matter  within the trial  judge's discretion, reviewable only

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for abuse.  See United States v. Morgano, 39 F.3d 1358,  1373                                                    

(7th Cir. 1994), cert. denied, 515 U.S. 1133 (1995).                                         

          Given  the posture, all  defendant asked  for, with

evidence  of  incompetency,  was  a  favorable  exercise   of

discretion in sentencing.  The court's refusal to  pursue the

matter,  we think, indicates a  disinclination to be any more

favorable than it  was.  Further, the decision  was based, in

part, on  observations of  defendant's behavior  during trial

and  sentencing.     The  record  expressly  reflects   noted

instances of communication between defendant and  his counsel

during the  latter.   We have  reviewed the  district court's

findings "comprehensively," Lebron,  76 F.3d at 32;  read the                                              

record,   and  listened   to,  in   effect,   testimony  from

defendant's trial counsel, and we think the case  well summed

up by the court.

          If  I  thought   for  a  minute  that   a
          competency  exam  or a  psychiatric  exam
          would  in any way  flush out any problems
          that may exist or be determinative of any
          issue here, I'd order it, but that's  not
          the case  in the court's  humble opinion.
          And if I  were to order  competency exams
          on   each   one   of   these   sentencing
          proceedings,    there    aren't    enough
          psychiatrists   and    psychologists   to
          accommodate all the competency exams.  It
          is not unusual . . . for defendants, once
          they've gone through trial and are facing
          sentence,   to  develop   all  kinds   of
          anxieties. . . .   [I]t would  be strange
          if  they didn't.  And I think that's what
          we have here, and I'm not  a psychiatrist
          or a  psychologist, but I'm not  going to
          delay  this  matter  any further  on  the
          basis  of  what  I have  before  me  now,

                             -6-

          unless  someone can  convince me  that it
          would be useful.

               And   that,    coupled   with    the
          defendant's  request to  get this  matter
          over with, which is  really what he wants
          to do I  think, that's what I'm  going to
          do.

We find no abuse or prejudice.

                        Offense Level                                                 

          Finally,   defendant  complains   of  the   court's

connecting  the weapon  to the  assault.   The import  of the

alleged error was assigning offense level 34 rather  than 33,

making the applicable sentencing range 262-327 months instead

of  235-293.   Under U.S.S.G.    4B1.4(b)(3)(A), the  greater

figure applies if the firearm was "used or possessed . . . in

connection with a  crime of  violence."   It is  acknowledged

that  "'in connection with' should be interpreted broadly and

that  where a  defendant's possession  of a  firearm aids  or

facilitates the  commission of another offense, the requisite

link is present."   United States v.  Thompson, 32 F.3d 1,  7                                                          

(1st Cir. 1994) (footnote omitted).

          Reviewing the district  court's findings for  clear

error,  see United  States v.  Gary,  74 F.3d  304, 317  (1st                                               

Cir.),  cert. denied,  116 S.Ct. 2567  (1996), we  find none.                                

The   defendant  had  a  history  of  threatening  his  wife,

sometimes with firearms.  During the events precipitating his

arrest,  he placed  the gun  on  the floor  of the  apartment

bedroom, openly visible.   He glanced  menacingly at the  gun

                             -7-

and then his wife, which she understood to be a threat, as he

attempted to have  her facilitate a sexual  encounter between

him and  another woman.   When that failed, he  compelled his

wife to endure three hours of sexual and physical abuse, some

of which  occurred in the room  with the gun.   He repeatedly

told her  that, in  her words, "You  probably ain't  going to

make it  through the night."  She said  she did not scream or

cry out  because she was  scared "because there was  a loaded

gun right beside the bed."  It is no stretch to conclude that

the  presence of  the gun  emboldened  the defendant  and, in

part, threatened  his victim into  submission, and  therefore

"aid[ed] or facilitat[ed]" the assault.  Thompson, 32 F.3d at                                                             

7; cf. United States  v. Sturtevant, 62 F.3d 33, 34 (1st Cir.                                               

1995) (per curiam).

          Affirmed.                               

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