U.S. v. Rose

• Decision Date: 07 January 1997
• Docket Number: 95-1752,Nos. 95-1171,s. 95-1171
• Parties: 46 Fed. R. Evid. Serv. 397 UNITED STATES of America, Appellee, v. Jamie ROSE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Norman VERRILL, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1408

104 F.3d 1408

46 Fed. R. Evid. Serv. 397

UNITED STATES of America, Appellee, v. Jamie ROSE, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Norman VERRILL, Defendant, Appellant.

Nos. 95-1171, 95-1752.

United States Court of Appeals, First Circuit.

Heard Jan. 7, 1997.

Decided Jan. 30, 1997.

Mark F. Itzkowitz, Boston, MA, for appellant Jamie Rose.

Thornton E. Lallier, Amesbury, MA, with whom Lallier & Anderson was on brief, for appellant Norman Verrill.

Kenneth P. Madden, Assistant U.S. Attorney, Providence, RI, with whom Sheldon Whitehouse, U.S. Attorney, and Margaret E. Curran, Assistant U.S. Attorney, were on brief, for appellee.

Before CYR, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

These two appeals arise out 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 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 semiautomatic 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 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 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 semiautomatic 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 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 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 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 (1st Cir.1986) (quoting United States v. Fischbach & 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...