
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1171                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     JAMIE ROSE,                                Defendant, Appellant.                                 ____________________        No. 95-1752                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   NORMAN VERRILL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Cyr, Circuit Judge,                                      _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Mark F. Itzkowitz for appellant Jamie Rose.            _________________            Thornton E. Lallier, with  whom Lallier & Anderson  was on  brief,            ___________________        for appellant Norman Verrill.            Kenneth  P. Madden,  Assistant U.S.  Attorney, with  whom  Sheldon            __________________                                         _______        Whitehouse,  U.S. Attorney,  and  Margaret E.  Curran, Assistant  U.S.        __________                        ___________________        Attorney, were on brief, for appellee.                                 ____________________                                   January 30, 1997                                 ____________________                      LYNCH, Circuit Judge.  These two appeals arise  out                      LYNCH, Circuit Judge.                             _____________            of  the armed robbery of  the Dexter Credit  Union in Central            Falls,  Rhode  Island  on April  6,  1994.    Jamie Rose  was            convicted  of conspiracy  to rob  a federally  insured credit            union in violation of 18 U.S.C.    371, 2113(a), and of being            a  felon in  possession  of  a  firearm  in  violation  of               922(g)(1).   Norman  Verrill was  convicted of  the  same two            offenses and also of armed robbery and robbery of a federally            insured  credit union.   18 U.S.C.   2113(a),  (d).  Rose was            sentenced to 60 months'  imprisonment on the conspiracy count            and  to  120  months'  imprisonment  for  being  a  felon  in            possession;  the sentences  are  consecutive.    Verrill  was            sentenced as  a career offender and an  armed career criminal            to a term of 264 months.                      On appeal, Rose raises a plethora of issues, two of            which are weightier than  the rest and require us  to address            issues  previously  unresolved  by  this court.    The  first            concerns  the jury charge that may properly be given based on            evidence  of a  defendant's  possession  of  recently  stolen            property.  The second  is whether the trial court  abused its            discretion by admitting a potentially inflammatory photograph            into evidence,  and if so, whether this  court has discretion            to  determine   whether  the  error  was harmless  where  the            government has  not so  argued.  Verrill  appeals exclusively                                         -2-                                          2            from the determinations made  as to his sentence.   We affirm            the convictions and the sentences.                                          I.                      During the late morning of April 6, 1994, three men            wearing  masks entered  the  Dexter Credit  Union in  Central            Falls, Rhode Island.   The  credit union was  insured by  the            National Credit Union Administration.   One robber brandished            a semi-automatic pistol while the two others  took money from            the teller stations.  A fourth masked man waited outside in a            black  pickup  truck, which  the robbers  used as  a get-away            vehicle.  Credit union  employees determined that $10,584 had            been stolen.1                      Police arrived at the scene a few minutes after the            robbers had fled.   They found the  get-away truck abandoned,            with  its engine running, a few blocks from the credit union.            The ignition had  been "popped," and the police later learned            that the truck had been stolen two days before.                      The authorities thought they knew where to find the            culprits.  Both the FBI and  the Providence Police Department            had  been   investigating  Verrill,  Rose,  David   Vial  and            Christopher  Thibodeau in  connection with  a series  of bank            robberies.  A confidential informant had provided information            that the  four men were involved in robbing banks.  A team of                                            ____________________            1.  The loss was initially thought to be $10,913.53, but that            figure was later adjusted downward.                                           -3-                                          3            officers,  consisting  of FBI  agents  and  Providence police            officers who were part of a bank robbery task force,  went to            Vial's  home in North Providence  and waited outside.   A few            minutes later, a champagne-colored Nissan Pathfinder carrying            four  men pulled into the  building parking lot.   Task force            members had seen Rose and Thibodeau in the Pathfinder earlier            that  day  and knew  that the  vehicle  had been  stolen some            months  earlier and that  the license plates  had been stolen            eleven days before the bank hold-up.                      The  task force  members approached  the Pathfinder            and  identified themselves.   Rose,  who was  driving, pulled            away  at  high speed,  nearly  hitting  two officers  in  the            process.    The officers  began  shooting.   Vial  managed to            escape  temporarily: he  was found  about forty-five  minutes            later hiding in a  bush.  The officers ordered  Rose, Verrill            and  Thibodeau out of the  vehicle.  Thibodeau,  who had been            wounded, was lying on the front seat; when the police removed            him from  the car,  they found that  he was  holding a  Glock            semi-automatic  pistol in  his left  hand and  had a  Smith &            Wesson  automatic pistol in the waistband of his pants.  Both            were  loaded with  Winchester  9 millimeter  Black Talon  and            Federal  Cartridge  hardball 9  millimeter  round ammunition.            The  officers found two small gym bags,  containing over nine            thousand dollars and makeshift masks, in the back seat of the            Pathfinder.   Some  of the  money was  banded by  paper money                                         -4-                                          4            straps  bearing the markings of the Dexter Credit Union.  The            four men were arrested.                      Rose  had  suffered  a  scalp  laceration  and  was            brought to Rhode Island  Hospital.  The physician's assistant            who  treated  him  found  a   screwdriver,  a  pager  and  an            ammunition  clip from  a Glock  semi-automatic pistol  in his            trouser  pockets.   These  items had  not  been found  in  an            earlier pat-down of Rose.                      Later that  night, an  FBI agent executed  a search            warrant at Rose's home in Providence.  There, the agent found            a box  of Federal  Cartridge ammunition designed  to hold  50            rounds of ammunition  but only containing 39  rounds, as well            as a leather pistol case.  The agent also seized a photograph            album  containing pictures  of Rose  and others.   Among  the            photos were five of Rose holding what appeared to be  a Glock            semi-automatic pistol.  One of the photos showed Rose, finger            on  the trigger, pointing the  pistol at the  head of another            young man.                      Defendants were  charged with conspiracy to rob the            Dexter  Credit  Union; armed  robbery  of  the credit  union;            robbery of  the credit  union; using  and carrying  a firearm            during  a crime of violence;  and possession of  a firearm by            previously convicted felons.  Vial  and Thibodeau, two of the            men in the car, pleaded guilty  to some of the counts and the                                         -5-                                          5            rest of the charges against them were dismissed.  Verrill and            Rose proceeded to trial.                      Rose moved to sever his trial from Verrill's and to            sever  the felon-in-possession charge from the other charges.            The motions were  denied after a hearing, as was a motion for            reconsideration.   The  district  court  ruled that,  because            there was  no evidence  of what  Verrill's defense would  be,            there was no basis  for concluding that Rose and  Verrill had            antagonistic defenses.                       Vial,  a government  witness,  testified  that  he,            Verrill and  Thibodeau entered  the credit union  while Rose,            who had the Glock, remained outside in the truck.   Vial said            that Thibodeau had  waited at  the door of  the credit  union            holding  the Smith  & Wesson  while he  and Verrill  took the            money.  He also testified that all four men fled in the truck            but then switched  to a  second stolen vehicle  which he  and            Rose had left  near the  credit union earlier  that day,  and            that soon afterwards, they moved to the Pathfinder.                      Rose's consecutive  60 and 120 month sentences were            based  on the  guideline for  robbery,  U.S.S.G.    2B3.1, as            dictated by the conspiracy guideline,  U.S.S.G.   2X1.1.  The            conspiracy guideline requires that the base offense level for            a conspiracy  conviction be  that of the  substantive offense                                         -6-                                          6            plus adjustments for any  intended conduct.2  See  U.S.S.G.                                                            ___            2X1.1(a).                      Verrill  was  sentenced  both  as  an  armed career            criminal pursuant to 18 U.S.C.   924(e) and U.S.S.G.   4B1.4,            and as a  career offender pursuant to  U.S.S.G.   4B1.1.   As            either  an armed  career  criminal or  as a  career offender,            Verrill's  offense  level was  34  and  his criminal  history            category VI, which translates into a guidelines  range of 262            to 327 months.  He was  sentenced to 264 months.  This appeal            ensued.                                         II.                      Rose argues that his  conviction should be reversed            for  several  reasons:  that   the  trial  court  abused  its            discretion in  denying the motions  to sever  his trial  from            Verrill's  and to sever  the felon-in-possession  count; that            the trial  court made erroneous  and prejudicial  evidentiary            rulings;  and  that  the charge  to  the  jury  was at  times                                            ____________________            2.  After determining the  specific offense  characteristics,            the  court calculated  the offense  level for  the conspiracy            count as 31 and the offense level for the felon-in-possession            count as  27.   The  district  court appropriately  used  the            higher  offense  level  of  31,  see  U.S.S.G.     3D1.3, and                                             ___            determined that  Rose had a  criminal history category  of V.            The guideline range was 168 to  210 months.  With a statutory            maximum of 5 years for the conspiracy conviction and 10 years            for  the felon-in-possession  conviction, the  district judge            determined the range to be 168 to 180 months.  He effectively            sentenced Rose to the statutory maximum.                                         -7-                                          7            erroneous  and at times incomplete.   We deal  first with his            more serious arguments.            Jury Instruction on Recently Stolen Property            ____________________________________________                      Rose  questions  several  aspects  of  the  court's            charge to the jury.   The most significant challenge concerns            the instruction  regarding the  inferences that the  jury may            permissibly draw from the  defendant's possession of recently            stolen items.  In  the context of discussing the  stolen get-            away  vehicles,  the  court  instructed  the  jury  that  the            possession of recently stolen property, if not satisfactorily            explained,  could  support an  inference  not  only that  the            person in possession  knew that the property  was stolen, but            also that he participated in the theft.3                      This raises a question  of first impression in this            circuit.4   The challenged instruction is  reviewed for abuse            of discretion  to determine  whether the  charge, taken as  a            whole, "'fairly and adequately submits the issues in the case            to the jury.'"  United States v. Picciandra, 788 F.2d 39,  46                            _____________    __________                                            ____________________            3.  Rose also  argues that the phrase  "if not satisfactorily            explained" impermissibly  penalized him  for failing  to take            the stand.   This latter  argument has been  rejected by  the            Supreme Court.  Barnes v. United States, 412 U.S. 837, 846-47                            ______    _____________            (1973).            4.  It has  long been the law that the jury may infer from an            individual's possession  of  recently stolen  items that  the            individual knew the property had been stolen.   See generally                                                            _____________            United States  v. Farnkoff,  535 F.2d 661,  666-67 (1st  Cir.            _____________     ________            1976).                                         -8-                                          8            (1st Cir. 1986) (quoting  United States v. Fishbach  & Moore,                                      _____________    __________________            Inc., 750 F.2d 1183, 1195 (3d Cir. 1984)).            ____                      We join  the other  circuit courts of  appeals that            have  concluded that  possession of recently  stolen property            may support  an inference  of participation  in the  theft of            that  property.  United States  v. Clark, 45  F.3d 1247, 1250                             _____________     _____            (8th Cir. 1995); United States v. Ferro, 709 F.2d 294, 296-97                             _____________    _____            (5th Cir. 1983); United States  v. DiGeronimo, 598 F.2d  746,                             _____________     __________            754-55 (2d Cir. 1979);  United States v. Long, 538  F.2d 580,                                    _____________    ____            580-81  (4th  Cir.  1976)  (per  curiam);  United  States  v.                                                       ______________            Plemons, 455 F.2d  243, 246  (10th Cir. 1972).   These  cases            _______            rely  in  large part  on  the  widespread acceptance  of  the            principle and on the common sense reasoning that supports the            inference.  See, e.g., Long, 538 F.2d at 581.                        ___  ____  ____                      We emphasize the limits  on instructions as to this            inference.   First, the instruction may not be given in every            case where a defendant was  in possession of recently  stolen            property.  As the Second Circuit noted, in certain situations            the inference "would verge on the irrational" in light of the            other evidence in the case.  United States v. Tavoularis, 515                                         _____________    __________            F.2d 1070, 1074-75  (2d Cir. 1975); see  also DiGeronimo, 598                                                ___  ____ __________            F.2d  at  754.   For example,  in  the absence  of additional            evidence  tending to  support the  inference, it  may not  be            appropriate  to give the instruction.   The court must always            act  as  a  check,   ensuring  "that  the  evidence  warrants                                         -9-                                          9            permitting the jury to draw [the] inference."  Clark, 45 F.3d                                                           _____            at 1250.                      Second,  the  instruction  involves   a  permissive            inference  rather than  a  presumption.   The decision  about            whether  the defendant's  unexplained possession  of recently            stolen property  supports the  conclusion that  the defendant            participated in the theft is made by the jury based on all of            the evidence.  Ferro, 709 F.2d at 297.                           _____                      With this in mind, we turn to Rose's claim that the            five month period between the theft of the Pathfinder and his            arrest  lessens the  applicability  of the  inference.   This            claim  ignores the other evidence  in the case.   The license            plates on the  Pathfinder were stolen  within eleven days  of            the  robbery, the black pickup  truck within two  days of the            robbery, and  Vial's testimony linked Rose to the truck.   On            these  facts, the  inference  that Rose  participated in  the            theft  of the  get-away cars  is not  at all  unreasonable or            unwarranted.            Evidentiary Rulings            ___________________                      Rose  argues  that  the  district  court  erred  by            admitting into evidence several  items found in his apartment            and  that  this error  was  not harmless.    Specifically, he            asserts that  the admission of  photos of himself  and others            with what appears to be  a Glock pistol, of a  leather pistol            case  and  a photograph  showing where  it  was found  in his                                         -10-                                          10            apartment and  of  a  box of  ammunition for  a 9  millimeter            pistol violated  Fed. R.  Evid. 403, because  the prejudicial            impact of  these items far outweighed  their probative value.            Review of the trial court's evidentiary rulings is for  abuse            of  discretion.  United States  v. Lombard, 72  F.3d 170, 187                             _____________     _______            (1st Cir. 1995).                      This evidence, in general,  met a threshold test of            relevance.  Pistols played an  important role in the  charged            crimes.   One of the  robbers brandished a  pistol inside the            credit  union.   Vial testified  that Rose  was armed  with a            second pistol.   Two  9 millimeter pistols  were seized  from            codefendant Thibodeau, and  a clip of ammunition  for a semi-            automatic  pistol was found on  Rose at the  hospital.  Items            linking  Rose   to  pistols  tended  to   corroborate  Vial's            testimony  that Rose was a participant  in the conspiracy and            that he had possessed the Glock.                      The presence  of  a leather  case for  a pistol  in            Rose's  home is evidence that  Rose kept such  a weapon there            before the crime.  That the case was manufactured by Browning            rather  than by Smith  & Wesson or  Glock goes  to the weight            rather  than to  the relevance  of the  evidence.   The jury,            during  their deliberations,  had  access to  the two  seized            weapons  and to  the  pistol case  and  therefore could  have            determined whether either of the pistols fit the case.                                         -11-                                          11                      The  relevance  of  the  ammunition  is  even  more            readily apparent.   The ammunition  was of the  same type  as            that  found in  the two  guns seized  when Rose  and his  co-            defendants were  apprehended.  The box was  marked as holding            fifty  rounds, but  contained only  thirty-nine rounds.   The            jury reasonably could have inferred that at least some of the            missing rounds had been used to load the two pistols.                      In general, the photographs showing Rose with a gun            are  relevant.   FBI Special  Agent Kevin Eaton  testified at            trial  that the gun in the photographs appeared to be a Glock            firearm; Eaton  stated that Glocks have  "a very distinctive"            look.   The photographs thus link  Rose to one of the weapons            seized, providing strong corroboration for Vial's inculpatory            testimony.                      The  pistol case  and accompanying  photograph, the            ammunition,  and four  of the  photographs showing  Rose with            what appeared to be a Glock were not unduly prejudicial.  One            of  the photos,  however,  which shows  Rose,  finger on  the            trigger,  with his gun pointed at the head of another person,            is  potentially quite inflammatory.  Rose is correct that the            photo  could lead  a jury  to believe  that anyone  who would            point a  possibly loaded pistol  at the  head of a  friend is            extremely reckless  and capable of criminal  acts.  Moreover,            this  photograph was  at  best cumulative  of the  four other            photographs linking Rose to  the gun.  The admission  of this                                         -12-                                          12            photograph into evidence constituted an  abuse of discretion.            The government all but conceded as much at oral argument.                      In the usual case, a non-constitutional evidentiary            error  will be treated as  harmless if it  is highly probable            that the error  did not  contribute to the  verdict.   United                                                                   ______            States  v. Rodriguez  Cortes,  949 F.2d  532,  543 (1st  Cir.            ______     _________________            1991); United States  v. Benavente Gomez,  921 F.2d 378,  386                   _____________     _______________            (1st Cir. 1990).  In a harmless error inquiry, the government            bears the burden of  persuasion with respect to showing  that            the error was  harmless.   United States v.  Olano, 507  U.S.                                       _____________     _____            725,  734-35 (1993).  By contrast, in a plain error argument,            the defendant bears  the burden.   Id.   The government  here                                               ___            failed  to   argue  that  the    court's   admission  of  the            photograph,  if   error,  would   be  harmless.     Does  the            government's  failure  to  raise  this issue  in  its  brief5            preclude  further review and  automatically require  that the            conviction be reversed  and sent  back for trial?   We  think            not.   Here we review to determine whether the government met            its burden  despite its failure explicitly  to argue harmless            error.                      We join several other  circuit courts of appeals in            holding that  appellate courts have the  discretion on direct            appeal to overlook the government's failure to argue that the                                            ____________________            5.  At  oral  argument, in  response  to  questions from  the            court,  the  government  suggested  that any  error  must  be            harmless.                                         -13-                                          13            admission of the challenged evidence, if error, was harmless,            and that appellate courts may therefore consider the issue of            harmlessness sua sponte.   Horsley v. Alabama,  45 F.3d 1486,                                       _______    _______            1492 n.10 (11th  Cir. 1995); United  States v. Langston,  970                                         ______________    ________            F.2d 692, 704 n.9  (10th Cir. 1992); Lufkins v.  Leapley, 965                                                 _______     _______            F.2d  1477, 1481 (8th Cir. 1992); United States v. Pryce, 938                                              _____________    _____            F.2d  1343, 1348 (D.C. Cir.  1991) (opinion of Williams, J.);            United  States v. Giovannetti,  928 F.2d  225, 227  (7th Cir.            ______________    ___________            1991).   In Rodriguez Cortes,  this court noted,  but did not                        ________________            resolve, the question, having found the evidence admitted was            not harmless.  949 F.2d at 543.                      Here,  we  find  that  the  evidence  admitted  was            plainly harmless.  The  photograph was cumulative, the weight            of  the   additional  evidence  overwhelming.     Under  such            circumstances, "it would be a waste of judicial  resources to            require  a new  trial where  the result  is likely to  be the            same."  Id.                    ___                      Courts  have variously  grounded  the authority  to            engage in sua  sponte harmless error  review on the  arguably            mandatory language of Rule 52(a), which states that any error            which   does  not   affect  substantial   rights  "shall   be                                                               _____            disregarded," and on other related doctrines.  See Pryce, 938                                                           ___ _____            F.2d at 1351 (Randolph, J.,  concurring).  Of obvious concern            is   the  cost  to  the  public  of  new  trials  because  of            carelessness  on the part of  the prosecutors on appeal where                                         -14-                                          14            the other evidence has  established guilt beyond a reasonable            doubt  and there is little reason to think the error infected            the jury  deliberations.   Also relevant  is the  interest in            avoiding  incentives to  the government to  fail to  make the            proper arguments.                      The  Seventh Circuit  decides whether  to undertake            the  harmless error analysis sua sponte based on a three part            test  considering  "[1]  the  length and  complexity  of  the            record, [2] whether the  harmlessness of the error or  errors            found is certain  or debatable,  and [3]  whether a  reversal            will  result  in protracted,  costly,  and ultimately  futile            proceedings in the district court."  Giovannetti, 928 F.2d at                                                 ___________            227.   While  we find  helpful the  reasoning of  the Seventh            Circuit,  we do  not  restrict ourselves  to the  Giovannetti                                                              ___________            test.  See Pryce, 938 F.2d at 1348 (opinion of  Williams, J.)                   ___ _____            (agreeing with  the general  approach of Giovannetti  but not                                                     ___________            adopting the  specific factors).  The  exercise of discretion            involves the balancing of many elements.  Among these are the            state  of  the  record and  whether  the  arguments that  the            government does make  provide assistance to the court  on the            harmlessness issue.6                                              ____________________            6.  Here,  many of the arguments made by the government as to            why the photograph was not prejudicial under Rule 403 also go            to the  question of  harmlessness.   Another example  of this            phenomenon is  when the  government marshals the  evidence in            response  to an  argument  that the  verdict was  against the            weight  of the  evidence.   That  evidence  too would  be  of            assistance to the court in a harmless error analysis.                                         -15-                                          15                      The government's case is, of course, put at risk by            its failure  to  argue that  admission  of the  evidence  was            harmless.  Here,  it survives the risk;  in other situations,            it  may  not.    Although  the  district  court  abused   its            discretion by admitting the  photograph of the mock shooting,            that is not a basis for overturning the conviction.            Severance            _________                      Rose  challenges  the  district  court's  denial of            motions  to sever his trial  from Verrill's and  to sever the            felon-in-possession  count.  See Fed. R. Crim. P. 14.  Review                                         ___            is for abuse  of discretion.  United States  v. Levy-Cordero,                                          _____________     ____________            67 F.3d 1002, 1007 (1st Cir. 1995), cert. denied,  116 S. Ct.                                                ____________            1558  (1996).   Defendant on  appeal must  make a  strong and            specific showing of  prejudice.  The prejudice  shown must be            greater  than that  inherent  in trying  multiple counts  and            multiple defendants  together.  United States  v. Yefsky, 994                                            _____________     ______            F.2d 885, 896 (1st  Cir. 1993); United States v.  Walker, 706                                            _____________     ______            F.2d 28,  30 (1st Cir. 1983).   Rose fails to  meet this high            standard.                      Rose argues  that being  tried with  Verrill forced            him to abandon his intention of testifying on his own behalf.            He maintains that he  did not participate in the  robbery but            merely picked up Verrill, Vial and Thibodeau when they called            to ask him to do so, and  that he only learned of the robbery            after the three men got into  the car.  He argues that if  he                                         -16-                                          16            had  testified,  Verrill  would   have  taken  the  stand  to            implicate  him.   Rose  concludes  that  he  and Verrill  had            antagonistic defenses which required severance.                      The  Supreme  Court   has  held  that   conflicting            defenses  of   codefendants   do  not   necessarily   require            severance,  reasoning that  the risk  of prejudice  will vary            with the facts of  each case.   Zafiro v. United States,  506                                            ______    _____________            U.S. 534, 538  (1993).   This court has  further refined  the            analysis,  holding that  antagonistic  defenses only  require            severance if the tensions  between the defenses are  so great            that the finder of  fact would have to believe  one defendant            at the expense of the other.  United States v. Smith, 46 F.3d                                          _____________    _____            1223, 1230 (1st Cir.), cert. denied, 116 S. Ct. 176 (1995).                                   ____________                      The trial  judge explained that he  was denying the            motion because he did not know whether Verrill actually would            testify if  Rose did,  and if so  what the substance  of that            testimony would  be.   The  judge  offered to  entertain  the            motion  anew during trial if Verrill did in fact testify, but            he  had no  basis  prior to  trial  for concluding  that  the            codefendants had inconsistent defenses.  Of course, the trial            judge  had a "continuing duty  at all stages  of the trial to            grant a  severance if prejudice [] appear[ed]."   Schaffer v.                                                              ________            United  States, 362  U.S. 511,  516 (1960).   Like  the trial            ______________            judge in Schaffer, the trial judge here was "acutely aware of                     ________            the possibility  of prejudice,"  id., and was  explicit about                                             ___                                         -17-                                          17            his  willingness to  sever if  a prejudicial  situation arose            during trial.                      That eventuality never occurred.  Neither Rose  nor            Verrill  put  on any  evidence  tending  to show  conflicting            defenses.   Rose put on  two witnesses who  testified that he            had  not  been the  driver of  the  black pickup  truck,7 and            Verrill  put  on no  witnesses at  all.   This  testimony was            insufficient  to   establish   that  the   codefendants   had            antagonistic defenses.8  Nor were the arguments made by their            counsel   necessarily   contradictory.      Rose's   attorney            essentially  argued that Rose  had been nothing  more than an            accessory after the fact, while Verrill's counsel argued that            the government had failed to meet its burden of proof.  These            theories  are not  irreconcilable.   Even if  they were,  the            level  of antagonism in defenses is  measured by the evidence            actually  introduced at  trial;  argument by  counsel is  not            evidence.  Smith, 46 F.3d at 1230.                       _____                      Nor  did the  trial court  abuse its  discretion in            failing to sever the  felon-in-possession count.  Rose argues            that if that  count had  been severed, the  jury would  never            have  known of his status  as a convicted  felon.  He asserts                                            ____________________            7.  Rose  also recalled  one  of  the  police officers  as  a            defense witness.            8.  Furthermore,  Rose's  claim  of  prejudice  rests on  the            premise that if Rose had testified, Verrill would  have taken            the  stand to implicate him.   This seems  improbable, for it            would have required Verrill to implicate himself as well.                                         -18-                                          18            that this information tainted him in the eyes of the jury and            resulted in his conviction on the conspiracy count.                      The felon-in-possession charge  was properly  tried            with  the  other charges  because it  arose  out of  the same            occurrence.     Any  prejudice   was  limited  because   Rose            stipulated  to  his  status   as  a  prior  convicted  felon.            Consequently,  the government  was  not permitted  to put  on            evidence  concerning the  number and  nature of  Rose's prior            felony convictions.  Old Chief v. United States, -- S. Ct. --                                 _________    _____________            (1997);   United States v.  Tavares, 21 F.3d  1, 4 (1st  Cir.                      _____________     _______            1994)  (en  banc).    Finally,  it  is  improbable  that  the            knowledge of Rose's status as a prior convicted felon led the            jury to  convict him of the conspiracy charge in light of the            acquittal on the two bank robbery charges.            Other Jury Instructions            _______________________                      Rose also  argues that the district  court erred by            refusing to charge the  jury that mere presence at  the scene            of  a  crime  was  not  sufficient  to  convict  him  on  the            conspiracy  charge.   The  trial  court's failure  to  give a            requested instruction  on the defendant's theory  of the case            is reversible error only if the requested instruction (1) was            substantively  correct; (2)  was  not  substantially  covered            elsewhere in the charge; and (3) concerned an important point            in  the  case so  that the  failure  to give  the instruction            seriously impaired  the defendant's  ability  to present  his                                         -19-                                          19            defense.  United  States v.  Williams, 809 F.2d  75, 86  (1st                      ______________     ________            Cir. 1986); United States  v. Gibson, 726 F.2d 869,  874 (1st                        _____________     ______            Cir. 1984).                      Jury instructions are viewed  in the context of the            charge as a whole rather than in isolation.  United States v.                                                         _____________            Nickens, 955 F.2d 112, 119 (1st Cir. 1992).  Furthermore, the            _______            trial court's charge need not use the exact wording requested            by the defendant so long as the  instruction incorporates the            substance  of  the defendant's  request.    United States  v.                                                        _____________            Campbell, 874 F.2d 838, 844 (1st Cir. 1989).  Here, the court            ________            instructed the jury as follows:                           Evidence that the  defendant was  in                      the company of, or associated with one or                      more of the persons alleged, or proved to                      have become  a member of  the conspiracy,                      is  not  sufficient  to  prove  that such                      defendant  was  a member  of  the alleged                      conspiracy.  Mere  similarity of  conduct                      among various persons, and the  fact that                      they may have associated with each other,                      may  have  been  together  and  discussed                      common  interests  is  not sufficient  to                      establish membership in a conspiracy.            In  addition,  as  part  of the  instruction  on  aiding  and            abetting, the jury was explicitly told that mere  presence at            the scene of the crime, even when coupled with knowledge, was            insufficient  to sustain a  conviction.  On  these facts, the            jury   charge   substantially    covered   Rose's    proposed            instruction, and  there was no error.                      Rose  also  contends  that  the   district  court's            instruction on drawing an inference of guilt from flight from                                         -20-                                          20            the  scene of the crime was incomplete.   It is true that the            instruction did  not explicitly  direct the jury  to consider            other possible inferences.   However, the charge did indicate            that it  was up to the  jury to determine whether  to draw an            inference  of  guilt  from  the flight.    This  conveys  the            substance of Rose's requested charge.  Williams, 809  F.2d at                                                   ________            88.  Furthermore, a  court need only  instruct the jury on  a            defense theory if there is supporting evidence in the record.            United  States v.  Silvestri,  790 F.2d  186,  192 (1st  Cir.            ______________     _________            1986).   Rose's counsel suggested  another possible inference            by arguing  in closing that Rose's  flight was understandable            given  that he  was  surrounded by  men  with drawn  weapons.            However,  no  evidence  was  adduced  to  this  effect.   The            challenged instruction was a correct statement of the law.                      The final claim Rose makes with respect to the jury            instructions is that  the district court erred by refusing to            give a "missing evidence" instruction.   We review for  abuse            of  discretion.  United States  v. Welch, 15  F.3d 1202, 1214                             _____________     _____            (1st Cir. 1993).  One of the situations that may warrant such            an  instruction is when  a party with  exclusive control over            relevant,  noncumulative  evidence   fails  to  produce  that            evidence.   Cf. United States v. St.  Michael's Credit Union,                        ___ _____________    ___________________________            880   F.2d  579,  597   (1st  Cir.   1989)("missing  witness"            instruction).  Rose argues that the FBI's failure  to examine            the  ammunition clip  found  on his  person for  fingerprints                                         -21-                                          21            justified the missing  evidence instruction.   However,  this            was not a case where the government failed to provide readily            available  evidence.    The  fingerprint  evidence  was never            collected.  Rose's  counsel was  free to argue  that, in  the            absence of such evidence, the government had not sufficiently            linked Rose to the crime.  See United States v. Martinez, 922                                       ___ _____________    ________            F.2d  914,  925  (1st Cir.  1991).   There  was  no  abuse of            discretion.            Rose's Sentence            _______________                      Rose  charges that  the  district court  should not            have calculated  his base  offense level using  the guideline            for   robbery,  because  he had  been  acquitted of  robbery.            Review   of  the   purely  legal   question  of   the  proper            interpretation of a sentencing guideline  is de novo.  United                                                         __ ____   ______            States v. Olbres,  99 F.3d 28, 35 (1st Cir.  1996).  There is            ______    ______            no error here.                      The   conspiracy   guideline  reflects   "a  policy            decision that  conspiracies . . . be treated like substantive            offenses  for  sentencing  purposes."     United  States   v.                                                      ______________            Chapdelaine,  989 F.2d 28, 36 (1st Cir. 1993).  This question            ___________            is  different from  the acquitted  conduct question  faced by            this court in United  States v. Mocciola, 891 F.2d  13, 16-17                          ______________    ________            (1st  Cir.   1989),  and   in  Lombard,   72  F.3d   at  174.                                           _______            Furthermore, the Supreme Court recently held in United States                                                            _____________            v. Watts that a "jury's verdict of acquittal does not prevent               _____                                         -22-                                          22            the sentencing court from considering  conduct underlying the            acquitted charge, so long as the conduct has been proved by a            preponderance of the evidence."  -- S. Ct. -- (1997).                                         III.            Verrill            _______                      Verrill  argues that  the district  court erred  in            sentencing  him as a career  offender and as  an armed career            criminal.  Under the  guidelines, an individual is considered            a career offender if (1) he was at least 18 years old  at the            time  he  committed  the  offense  for   which  he  is  being            sentenced; (2) the offense is a  felony and either a crime of            violence or  a substance abuse  crime; and (3)  the defendant            has  at least  two prior convictions  for crimes  of violence            and/or substance  abuse crimes.   U.S.S.G.   4B1.1.   Verrill            argues,  erroneously,  that  he   does  not  meet  the  third            requirement.                      A crime  of violence is defined,  in relevant part,            as a state  or federal  offense punishable by  more than  one            year in prison  that "is  burglary of a  dwelling, arson,  or            extortion, involves use of  explosives, or otherwise involves            conduct that  presents a  serious potential risk  of physical            injury  to another."    U.S.S.G.    4B1.2(1)(ii).   Verrill's            presentencing   report  lists   ten  prior   offenses:  three            instances  of  entering  a  dwelling with  intent  to  commit            larceny,  three  instances  of  breaking  and  entering,  one                                         -23-                                          23            instance of breaking and  entering a dwelling with  intent to            commit larceny,  one instance  of breaking and  entering with            intent to  commit larceny,  one instance  of possession  of a            stolen  vehicle,  and one  instance of  escape.   Six  of the            offenses,  at least  four  of which  were  clearly crimes  of            violence, took place during a four month period  when Verrill            was only eighteen years  old.  He therefore argues  that they            should only count as  a single offense.  Verrill  also argues            that  none  of his  later  offenses  (breaking and  entering,            breaking  and   entering  with  intent   to  commit  larceny,            possession  of a stolen  vehicle, and escape)  were crimes of            violence or involved a controlled substance.                        Whether  a  particular   offense  qualifies  as   a            predicate offense for career offender purposes is reviewed de                                                                       __            novo.   United  States v. Winter,  22 F.3d  15, 18  (1st Cir.            ____    ______________    ______            1994).   This court takes a categorical approach and looks to            the statutory  definitions rather than  the particular facts.            Id;  see  also Taylor  v. United  States,  495 U.S.  575, 598            __   _________ ______     ______________            (1990).   It is therefore  irrelevant that none  of the facts            underlying the prior offenses for which Verrill was convicted            involved the use of physical  force against another.  Verrill            was  convicted  of breaking  and  entering  and breaking  and            entering with intent  to commit larceny in  violation of R.I.            Gen. Laws    11-8-4.  On  very similar facts,  this court has            held that violation  of that statute  constitutes a crime  of                                         -24-                                          24            violence  for career  offender  purposes.   United States  v.                                                        _____________            Fiore, 983  F.2d 1, 4-5 (1st Cir. 1992).  After all, burglars            _____            may resort to violence if  someone arrives while the burglary            is  in progress.  United  States v. Patterson,  882 F.2d 595,                              ______________    _________            604  (1st Cir. 1989).  Verrill's record shows, apart from his            activities when  he was eighteen,  that he has  the requisite            two prior convictions to qualify as a career offender.                      The  district  court's  calculation  of  an offense            level of 34 is correct if Verrill is either a career offender            or an armed career criminal.   Having determined that Verrill            was correctly  sentenced as  a career offender,  there is  no            need to reach the question of whether he also qualified as an            armed  career criminal.  Nor is there  a need to reach any of            his other sentencing claims.9                      Affirmed.                      _________                                            ____________________            9.  The district  court only addressed these  other issues to            ensure  a complete record in  the event that  the decision to            sentence  Verrill  as  a  career offender  and  armed  career            criminal was reversed on appeal.                                          -25-                                          25
