
USCA1 Opinion

	




          July 7, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                        _____          No. 91-1794                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    GARY BARROWS,                                Defendant, Appellant.                                     ___________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  June 24,  1993,  is          amended as follows:               On cover sheet "United Staates Attorney" should read "United                               _______________________               ______          States Attorney".          _______________          July 1, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                        _____          No. 91-1794                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    GARY BARROWS,                                Defendant, Appellant.                                     ___________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  June 24,  1993,  is          amended as follows:               On  cover  sheet under  list  of  counsel "Assistant  United          States Attornery Thomas C. Frangillo" should be corrected to read          "Assistant United States Attorney Fongillo."          June 25, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                        _____          No. 91-1794                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    GARY BARROWS,                                Defendant, Appellant.                                     ___________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  June 24,  1993,  is          amended as follows:               On page 2, line 11:  replace "taking" with "taken"                             UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1794                                    UNITED STATES,                                      Appellee,                                          v.                                    GARY BARROWS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Gregory  Burr   Macaulay,  by  appointment   of  the  Court,   for            ________________________        appellant.            Thomas C. Frangillo,  Assistant United States Attorney, with  whom            ___________________        A. John Pappalardo, United States Attorney, was on brief for appellee.        _  _______________                                 ____________________                                    June 24, 1993                                 ___________________                 Per  Curiam.   Gary Barrows  appeals his  conviction and                 ___________            sentence for  being a felon in  possession of a  firearm.  18            U.S.C.     922(g)(1).    Barrows was  charged  in  this  case            following  the discovery  of  a  .22  caliber revolver  in  a            vehicle occupied by Barrows and three others during a routine            traffic stop by two  Boston police officers.  At the  time of            the  stop, Barrows was  seated on the  back seat of  the car.            After approaching the  vehicle, Officer Matthews saw  Barrows            remove the gun from  his waist, toss it onto  the floorboard,            and  kick it  underneath  the car's  front  seat.   All  four            occupants  of the car were  arrested and taken  to the police            station for booking.                 At  the police  station, Barrows  told the  two officers            that  his companions  were not  responsible for  the gun  and            Barrows admitted that  it belonged  to him.   As Barrows  had            four prior felony  convictions, he was  charged with being  a            felon in  possession  of a  firearm.   Barrows was  convicted            following a jury trial that included the testimony of the two            police officers.  Thereafter, Barrows was sentenced under the            Armed Career Criminal Act, 18 U.S.C.   924(e), to a mandatory            minimum fifteen-year term of imprisonment, and to three years            of supervised release.                   In this  appeal,  Barrows first  contends  that  Officer            Matthews' observation of Barrows' possession of the  revolver            is  not independent  evidence  corroborating  his  subsequent                                         -2-                                         -2-            admissions to ownership, and  that without this testimony the            evidence was insufficient to convict.   Under Opper v. Smith,                                                          _____    _____            348  U.S.  84  (1954),  an extrajudicial  admission  must  be            corroborated by  independent evidence  in order to  support a            conviction.   Barrows maintains that the testimony concerning            his physical  possession  of  the  gun does  not  qualify  as            "independent" evidence because it came from the same source--            broadly  construed  by   Barrows  as  encompassing  all   law            enforcement  officials--that  testified  to  his  post-arrest            statements.                 The  requirement of independence refers to the evidence,                                                                ________            not to  the source of  the evidence. Opper,  348 U.S.  at 93.                                                 _____            Testimony that is otherwise admissible or corroborative "does            not  suddenly  become  less admissible  or  corroborative  or            itself in need of corroboration simply because the eyewitness            also  heard  the  defendant   confess."    United  States  v.            ____                                       ______________            O'Connell,  703 F.2d 645,  648 (1st  Cir. 1983)  (emphasis in            _________            original).    Since the government in this  case did not rely            solely on  Barrows' admissions  but instead introduced  other            evidence  of Barrows'  possession  of the  gun, his  argument            based on Opper must fail.                     _____                 Barrows next contends that the record does not establish            that  he  knowingly and  intelligently  waived  his right  to            testify at  his trial.  We disagree.  The record reveals that            the district  court, upon being informed  that Barrows wished                                         -3-                                         -3-            to  testify  against the  advice  of  counsel, fully  advised            Barrows regarding his right  to testify in his defense.   The            district judge  informed Barrows that  his prior  convictions            would be  brought out  if  Barrows testified,  but that  "Mr.            Howard [Barrows' lawyer]  can't tell  you what to  do.   It's            going to have  to be  your own decision."   Pertinently,  the            district court also told Barrows that if he had any questions            he could raise them with the court, and that unless the court            heard otherwise  it would  assume that whatever  decision was            made was Barrows' own choice.                 No  more  elaborate procedure  than  this was  required.            Neither  Barrows nor  his  trial counsel  informed the  court            after this  discussion that Barrows still  wished to testify.            Barrows did not  take the stand.  Given this  record, we must            conclude, as  did the district court,  that Barrows knowingly            and intelligently waived his right to testify in his behalf.                 Finally,  Barrows requests  a remand  for re-sentencing,            claiming  that he  did not  have a sufficient  opportunity to            review  his  presentence  report.   Under  Fed.  R. Crim.  P.            32(c)(3)(A),  a criminal  defendant must  be provided  with a            copy of the presentence  report at least ten days  in advance            of sentencing unless the defendant waives the minimum ten-day                          ______            period.   At the outset  of the sentencing  hearing, Barrows'            lawyer  informed the district court that  he had neglected to            furnish  his client  with a  copy of  the  presentence report                                         -4-                                         -4-            which  was timely sent to  Barrows' counsel.   The lawyer did            state,  however, that he had reviewed the report with Barrows            on  previous occasions.   The district court then recessed in            order to allow Barrows to read the report.                 When  the hearing re-convened,  Barrows' lawyer informed            the  court that he had reviewed the report with Barrows "page            by page."   Neither  Barrows nor  his counsel indicated  that            they needed additional time  to go over the  report.  In  our            view,  the failure  to invoke  Rule 32(c)(3)(A) or  request a            continuance   effectively  waives   the   claim,   absent   a            miscarriage of justice.   Here there is no indication  of any            prejudice since  Barrows does  not claim that  his sentence--            determined solely on the  basis of his prior convictions--was            wrongly computed.    See  United States v.  Wright, 873  F.2d                                 ___  _____________     ______            437,  445 (1st  Cir.  1989) (late  disclosure of  addendum to            presentence report  was harmless error).   Absent an arguable            error  in the sentence,  a remand for  re-sentencing would be            pointless even if the claim had not been waived.                 Affirmed.                 ________                                         -5-                                         -5-
