United States v. Barrows

• Court: Court of Appeals for the First Circuit
• Decided: July 7, 1993
• Docket: 91-1794
• Status: Published

Opinion

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

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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

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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

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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.
                 ________

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