United States v. Gary

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1113

UNITED STATES,

Appellee,

v.

RAYMOND J. GARY,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Selya and Boudin, Circuit Judges,

and Saris,* District Judge.

Marie T. Roebuck for appellant.

Sheldon Whitehouse, United States Attorney, with whom

Gerard B. Sullivan and Margaret E. Curran, Assistant United

States Attorneys, were on brief for appellee.

January 5, 1996

* Of the District of Massachusetts, sitting by designation.

SARIS, District Judge. After his first jury trial
SARIS, District Judge.

ended in deadlock, defendant Raymond J. Gary ("Gary") was

convicted by a second jury of possession of a firearm by a felon,

in violation of 18 U.S.C. 922(g). He was sentenced to over

twenty-four years incarceration as an armed career criminal

pursuant to 18 U.S.C. 924(e).

Gary raises six issues on appeal: (1) whether the

district court violated his Sixth Amendment right to compulsory

process by precluding him from calling a defense witness who

would provide exculpatory information on direct examination but

would assert the Fifth Amendment with respect to non-collateral

issues on cross-examination; (2) whether the district court erred

in finding that this defense witness had not waived his Fifth

Amendment privilege against self-incrimination by virtue of his

testimony at the first trial; (3) whether the government properly

sought authorization to prosecute under the U.S. Justice

Department guidelines regarding dual federal-state prosecutions

(i.e., the "Petite policy"); (4) whether Gary was selectively

prosecuted on account of his race; (5) whether Gary received a

fair trial in light of the government's reliance on what he

contends was "perjured testimony by a law enforcement official";

and (6) whether the district court misapplied U.S.S.G. 4B1.4 in

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determining Gary's total offense level.1 We affirm the

conviction and sentence.

I. STATEMENT OF THE CASE
I. STATEMENT OF THE CASE

A. FACTS
A. FACTS

We set forth the evidence in the light most favorable

to the verdict. United States v. Tuesta-Toro, 29 F.3d 771, 773

(1st Cir. 1994), cert. denied, U.S. , 115 S. Ct. 947 (1995).

On May 14, 1994, Gary and a friend, Eric Hopkins, spent

part of the evening going to nightclubs. After midnight,

Patrolman James Joseph Corry of the North Providence Police

Department encountered Gary and Hopkins when they were attempting

to break into Rhode Island Auto Radio. Earlier that evening,

they had stolen some vases from a furniture store elsewhere in

North Providence. Upon seeing Corry, Hopkins fled on foot and

Gary attempted to escape by car at high speed. Gary lost control

of the vehicle, which left the road and struck the foundation of

an adjacent building. Corry caught up to Gary as he was

attempting to exit the wrecked automobile. Gary resisted arrest,

and the efforts of several officers were necessary to subdue him.

Once the officers successfully apprehended Gary, they conducted a

"pat-down" search for weapons. At that time, a loaded and fully-

operable Colt .25 caliber handgun fell from Gary's waistband.

Hopkins also was arrested, and a Dickson .25 caliber semi-

1 Gary also contends he did not receive a fair trial in light of
the totality and cumulative effect of the trial court's errors.
Since we do not find error with respect to any of the issues, we
do not address this claim separately.

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automatic pistol was seized from him. Hopkins later admitted to

possessing the firearm.

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B. PROCEEDINGS BELOW
B. PROCEEDINGS BELOW

Gary and Hopkins each were initially charged in state

court with violations of the Rhode Island General Laws.2 On

June 9, 1994, a federal grand jury returned an indictment

charging both with possession of a firearm by a felon in

violation of 18 U.S.C. 922(g). On August 31, 1994, the

government filed a notice that, if Gary was convicted, it would

seek a penalty enhancement pursuant to the Armed Career Criminal

Act ("ACCA"), 18 U.S.C. 924(e)(1). Hopkins pled guilty, on

September 8, 1994.

From October 13 to 17, 1994, Gary was tried by a jury

before Judge Raymond J. Pettine. Hopkins, who was represented by

counsel, testified on Gary's behalf and was cross-examined by the

government concerning the break-ins, the circumstances of the

arrest, and the firearms. The proceedings ended in a mistrial

when the jury announced that it was unable to reach a verdict.

Gary's case then was transferred to Judge Mary M. Lisi,

before whom the second jury trial commenced on October 25, 1994.

When Gary attempted to call Hopkins to the stand, however, the

government objected on the grounds that Hopkins would invoke his

Fifth Amendment right against self-incrimination during cross-

examination. At a conference and subsequent voir dire outside

the presence of the jury, Gary proffered that Hopkins would

testify that, while they were together at nightclubs on the night

2 Gary was charged with possession of a firearm, breaking and
entering, conspiracy, assault with a dangerous weapon, and
reckless driving.

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of May 14, 1994, he never saw Gary possess a firearm and that

they were together until approximately ten minutes preceding the

automobile wreck after which Gary was arrested. In the voir

dire, Hopkins asserted his privilege against self-incrimination

in response to questioning about the breaking and entering, which

immediately preceded his arrest. Hopkins was then facing pending

state breaking and entering charges and a parole revocation

proceeding and had not yet been sentenced on the federal charge.

Although Hopkins had testified in the first trial

regarding the breaking and entering and had been assisted by

counsel at that time, the court held that his prior testimony was

not a voluntary, knowing, and intelligent waiver of his Fifth

Amendment privilege, particularly because Hopkins' separate

counsel for the state proceedings had not been informed that

Hopkins would be appearing in federal court.3 Moreover, the

court held that the government's intended cross-examination

regarding the breaking and entering was "germane" and

"permissible" and thus refused to restrict its scope.

After excusing Hopkins from testifying, the court

permitted Gary to introduce Hopkins' prior recorded testimony

from the first trial by having it read to the jury by Hopkins'

state counsel. Notwithstanding this ruling, Gary argued that his

3 Hopkins was represented by three different attorneys in the
various federal and state proceedings who apparently did not
communicate in advance of Hopkins' testimony in the first trial.
In addition, when Gary's counsel interviewed Hopkins to solicit
information upon which his testimony in the first trial was
based, she asked permission only of the attorney representing
Hopkins on the federal charges.

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Sixth Amendment right to compulsory process was violated and

moved for a mistrial on that ground. This motion was denied.

The jury returned a verdict of guilty on October 28,

1995. Gary was sentenced as an armed career criminal to twenty-

four years and two months imprisonment, five years of supervised

release, and a $50 special assessment. Judgment was entered on

January 19, 1995, and Gary filed a timely notice of appeal.

II. ANALYSIS
II. ANALYSIS

A. Sixth Amendment Compulsory Process
A. Sixth Amendment Compulsory Process

This case requires us to harmonize a conflict between a

defendant's Sixth Amendment right "to have compulsory process for

obtaining witnesses in his favor," U.S. Const. amend. VI, and the

government's interest in cross-examining a defense witness who

has invoked his Fifth Amendment right against self-incrimination.

Gary contends that his right to compulsory process was

denied when the trial court refused to permit Hopkins to testify

and instead only permitted Hopkins' testimony from the first

trial to be read to the jury. Gary argues that the trial court

should have required Hopkins to invoke his right against self-

incrimination during cross-examination in the jury's presence.

"The right to offer the testimony of witnesses, and to

compel their attendance, if necessary, is in plain terms the

right to present a defense . . . . This right is a fundamental

element of due process of law." Washington v. Texas, 388 U.S.

14, 19 (1967); see also Chambers v. Mississippi, 410 U.S. 284,

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302 (1973). The Sixth Amendment, however, does not provide "an

unfettered right to offer testimony that is incompetent,

privileged, or otherwise inadmissible under standard rules of

evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1988). As the

Supreme Court noted in an opinion upholding a trial judge's

decision to preclude a defense witness's testimony on evidentiary

grounds, "[t]he Sixth Amendment does not confer the right to

present testimony free from the legitimate demands of the

adversary system; one cannot invoke the Sixth Amendment as a

justification for presenting what might have been a half-truth."

United States v. Nobles, 422 U.S. 225, 241 (1975).

While the government's interest in cross-examining

defense witnesses is not rooted in the Constitution, see United

States v. Pardo, 636 F.2d 535, 542 n.21 (D.C. Cir. 1980) ("The

government of course has no Sixth Amendment or other

constitutional right to cross-examine defense witnesses."), one

of the legitimate demands of the adversary system is the right of

cross-examination. See Fed. R. Evid. 611(b) (permitting cross-

examination "limited to subject matter of the direct examination

and matters affecting the credibility of witness"). "Cross-

examination is the principal means by which the believability of

a witness and the truth of his testimony are tested." Davis v.

Alaska, 415 U.S. 308, 316 (1974). As Professor Wigmore stated:

The main and essential purpose of
confrontation is to secure for the

opponent the opportunity of cross-

examination. The opponent demands

confrontation, not for the idle purpose
of gazing upon the witness, or of being

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gazed upon by him, but for the purpose of
cross-examination, which cannot be had
except by the direct and personal putting
of questions and obtaining immediate
answers.

5 J. Wigmore, Evidence 1395, at 150 (Chadbourne rev. 1974)

(emphasis in original), quoted in Davis, 415 U.S. at 315-16; see

also United States v. Stubbert, 655 F.2d 453, 457 (1st Cir. 1981)

(quoting same).

Courts have not permitted defendants to call witnesses

to the stand who have indicated that they will refuse to answer

the government's questions on cross-examination with respect to

non-collateral matters. In United States v. De La Cruz, 996 F.2d

1307 (1st Cir.), cert. denied, U.S. , 114 S. Ct. 356 (1993),

the defendant called his friend and former co-defendant as a

witness, but in a voir dire examination, he refused to answer any

questions other than his name and address on self-incrimination

grounds. In response to the suggestion that the government's

cross-examination should be limited so that the defense witness's

privilege need not be invoked, we held that "effective cross-

examination would have been seriously impaired if the prosecutor

were denied latitude to explore the joint criminal history" and

affirmed the trial judge's decision not to permit the witness to

testify. Id. at 1312-14. See also United States v. Parcels of

Land, 903 F.2d 36, 43 (1st Cir. 1990) ("It is well-accepted that

a witness's direct testimony can be stricken if she invokes the

fifth amendment on cross-examination to shield that testimony

from scrutiny.") (citing cases); United States v. Zirpolo, 704

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F.2d 23, 25-26 (1st Cir.) (when defense witness rightfully

refuses to answer questions based on the privilege against self-

incrimination, trial court need not limit scope of government's

cross-examination on conversations relating to other

contemporaneous drug offenses), cert. denied, 464 U.S. 822

(1983); accord Denham v. Deeds, 954 F.2d 1501, 1503-04 (9th Cir.

1992) ("We . . . join with those circuits that have permitted the

exclusion of a defense witness's testimony when the witness has

refused on cross-examination to respond to questions on non-

collateral matters."); United States v. Esparsen, 930 F.2d 1461,

1469-70 (10th Cir. 1991) (same), cert. denied, 502 U.S. 1036

(1992); United States v. Doddington, 822 F.2d 818, 822 (8th Cir.

1987) (trial court properly struck direct testimony of defense

witness who invoked Fifth Amendment during cross-examination).

Attempting to combat this solid phalanx of precedent,

Gary cites cases in which courts permitted government witnesses

to invoke the privilege against self-incrimination during

defendant's cross-examination without violating the Confrontation

Clause of the Sixth Amendment. See United States v. Berr o-

Londo o, 946 F.2d 158, 160-61 (1st Cir. 1991), cert. denied, 502

U.S. 1114 (1992); Stubbert, 655 F.2d at 457-58. Each of these

cases rely on the Second Circuit's much-cited holding in United

States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied,

375 U.S. 822 (1963) that:

In determining whether the testimony of a
witness who invokes the privilege against
self-incrimination during cross-
examination may be used against the

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defendant, a distinction must be drawn
between cases in which the assertion of
the privilege merely precludes inquiry
into collateral matters which bear only
on the credibility of the witness and
those cases in which the assertion of the
privilege prevents inquiry into matters
about which the witness testified on
direct examination.

When cross-examination is precluded only with respect to

collateral issues, the Sixth Amendment does not require the court

to strike the witness's testimony. See Berr o-Londo o, 946 F.2d

at 161 (refusing to strike direct testimony when cross-

examination limited to issues "not relevant to Berr o-Londo o's

guilt or innocence"); Stubbert, 655 F.2d at 457-58.

When cross-examination on material issues raised on

direct examination is curtailed because of a witness's valid

claim of privilege, however, the trial court, in its discretion,

may refuse to permit that witness's testimony. See De La Cruz,

996 F.2d at 1313-14. Just as the trial court must be vigilant in

ensuring that a defendant has a full and fair cross-examination,

see Cardillo, 316 F.2d at 611, it must similarly safeguard the

government's cross-examination "to prevent coconspirators from

'whitewashing' each other through the use of testimony

unchallengeable for one reason or another." Zirpolo, 704 F.2d at

26 (quoting United States v. Lowell, 649 F.2d 950, 962 (3d Cir.

1981)).

We have recognized that it "may sometimes be feasible

for a district court to reconcile the defendant's right to

present witnesses with a witness's privilege against self-

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incrimination by limiting the scope of the latter's testimony."

Id. at 26. In striking the appropriate balance between a

defendant's Sixth Amendment rights and the government's interest

in cross-examination, a "trial judge may or even must limit the

government's cross-examination on collateral matters if this can

be done without unduly limiting the government and if doing so

will preserve the defendant's ability to call a material witness

who would otherwise claim the privilege." De La Cruz, 996 F.2d

at 1313; see also Pardo, 636 F.2d at 544 ("[W]here the rights of

the defendant and the government can be reconciled, the

defendant's constitutional right to procure testimony in his

favor must prevail.").

Where, as here, a defense witness's claim of privilege

shields material testimony from cross-examination, however, this

balance weighs against the defendant. The trial court held a

voir dire hearing to determine whether the subject matter

concerning which the witness intended to assert the Fifth

Amendment was collateral. She fairly concluded that it was not.

See Fed. R. Evid. 611(b) (giving court authority to exercise

reasonable control over examination of witnesses to "make the

interrogation and presentation effective for the ascertainment of

the truth").

In considering similar types of challenges brought

under the Confrontation Clause of the Sixth Amendment, we have

applied an abuse of discretion standard. See Berr o-Londo o, 946

F.2d at 160 (holding that trial court did not abuse its

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discretion by refusing to strike witness's testimony on direct

examination when witness asserted Fifth Amendment on collateral

matters on cross-examination, particularly when witness was

required to invoke privilege in presence of jury). We apply the

same abuse of discretion standard in determining kindred

challenges under the Compulsory Process Clause of the Sixth

Amendment. See United States v. Blum, 62 F.3d 63, 67 (2d Cir.

1995) (applying abuse of discretion standard to review

evidentiary decision challenged on Compulsory Process Clause

ground). We find no abuse of discretion here.

According to Gary's proffer, "Hopkins would have

testified that during the course of the evening, he was able to

observe [Gary] and never visually saw a firearm on his person,

nor was one detected by the metal detectors, or doorman at the

nightclubs." Hopkins' testimony certainly was material to the

defense as it showed that, after a significant period of

observation, he did not see Gary possess a firearm. However, at

the first trial, Hopkins testified that the pair had been

involved in two instances of breaking and entering after leaving

the clubs and that he did not know whether Gary had hidden a gun

in his car before going to the clubs. Had Hopkins been permitted

to testify and to refuse to answer questions regarding the

breaking and entering, as he told the court he would, the

government's cross-examination of Hopkins would have been

rendered ineffective.

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Thus the trial court found, "[t]he matters that Mr.

Hopkins would have testified to and, in fact, did testify to at

the previous trial were closely related in time and space to the

matter that is before the Court in which the jury must consider.

And therefore, all of the information that would have been

elicited or attempted to have been elicited by the Government

would have been germane and would have been permissible." We

discern no abuse of discretion in the trial court's determination

that the subject matter of the cross-examination as to which

Hopkins would have asserted his privilege was material and

relevant. Any limitation on cross-examination would have been

unduly prejudicial to the government.

Furthermore, in striking the appropriate balance, the

trial court took into consideration that Gary was not deprived of

an opportunity to present Hopkins' testimony. Although Hopkins

did not appear personally in the second trial, his testimony from

the first trial was read in full to the jury. It was read with

counsel for the government and for Gary each reading their

respective parts and a third person reading Hopkins' responses.

Indeed, at oral argument Gary's counsel engaged in a brief

thespian demonstration intended to convey the desiccated manner

in which Hopkins' testimony was read at Gary's second trial. We

noted then, and reiterate today, that whenever transcript

testimony is admitted in a trial, the fact-finder is deprived of

a full-fledged opportunity to assess directly the credibility and

demeanor of the declarant. The rules of evidence, however,

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permit such evidence to be admitted at trial. See Fed. R. Evid.

804(b)(1) (former testimony exception to hearsay rule).

Gary suggests that, rather than prohibit Hopkins' live

testimony altogether, the trial court should have permitted

Hopkins to testify on direct examination and forced him to invoke

the Fifth Amendment privilege on cross-examination in the

presence of the jury. That solution, Gary argues, strikes a more

appropriate balance between the government's and the defendant's

interests because "the government could have used the transcript

to impeach this testimony or could have relied upon the adverse

inference of the witness's invocation of the Fifth." This

approach finds some support in United States v. Kaplan, 832 F.2d

676 (1st Cir. 1987), cert. denied, 485 U.S. 907 (1988), where we

held that when "a non-party government witness invokes the Fifth

Amendment on cross-examination at trial, the court should permit

the assertion of the privilege in the presence of the jury. The

invocation of the privilege acts as a form of impeachment." Id.

at 684.

In Kaplan, we distinguished United States v. Johnson,

488 F.2d 1206 (1st Cir. 1973), in which we held that a court did

not abuse its discretion in refusing to allow a defense witness

to take the stand when, after direct examination was completed,

that witness would assert the Fifth Amendment as to "essentially

all" questions on cross-examination. Id. at 1211. The basis for

the distinction follows:

A different case is presented where, as
here, the defense seeks to cross-examine

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a government witness within the scope of
his direct and then the witness asserts
the privilege. We note, first, that the
impact on the jury's deliberations from
asserting the privilege has to be less
here than in Johnson from the fact that

Brown did not claim the privilege
comprehensively. Instead, Brown answered
most questions put to him by the defense
and could have refused to answer at trial
only those bearing on the alleged cocaine
abuse. And whatever danger exists that
the jury may give too much weight to this
line of questioning is small in
comparison to its impeachment value.

Kaplan, 832 F.2d at 684.

Unlike Kaplan, where the invocation of the Fifth

Amendment pertained to a collateral matter -- the effect of

alleged cocaine abuse on the witness's power of memory or

observation -- here the assertion of the privilege would have

shielded the witness from testifying on a core issue addressed on

direct examination. Hopkins' claim of privilege would have

precluded government inquiry into the intervening events between

the time Hopkins observed the defendant to have no firearm and

the time the police officer testified he saw a gun in defendant's

possession. Such testimony would have been directly relevant to

Gary's guilt or innocence. Accordingly, while the trial judge

may have had the discretion to strike a balance along the lines

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proposed by the defendant,4 there was no abuse of discretion in

striking the balance a different way.5

B. Waiver of Fifth Amendment Privilege
B. Waiver of Fifth Amendment Privilege
Against Self-Incrimination
Against Self-Incrimination

Gary asserts that Hopkins waived his privilege against

self-incrimination by virtue of his testimony in the first trial

regarding the breaking and entering. Therefore, he contends, the

trial court wrongly sustained Hopkins' claim of privilege in the

second trial.

The Fifth Amendment privilege is "fundamental to our

system of constitutional rule." Miranda v. Arizona, 384 U.S.

436, 469 (1966). However, "the privilege against self-

incrimination presupposes a real danger of legal detriment

arising from the disclosure." Rogers v. United States, 340 U.S.

367, 372-73 (1951). Thus the privilege may be waived, see id. at

370-71, or obviated by a prosecutorial grant of immunity. See

Kastigar v. United States, 406 U.S. 441, 461-62 (1972); cf.

United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir.) (court

ordinarily cannot grant immunity), cert. denied, 498 U.S. 845

(1990).

4 There is no evidence in the record that the defendant proposed
this particular solution to the trial judge.

5 We also note that if Gary had opted to testify as to whether
he possessed a gun at the time of his arrest, he would not have
been permitted to take the Fifth Amendment with respect to the
breaking and entering offenses which immediately preceded. See

Brown v. United States, 356 U.S. 148, 155-57 (1958) (holding that

defendant's exercise of right to testify in own behalf waives his
Fifth Amendment privilege against self-incrimination).

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Once a witness voluntarily has revealed an

incriminating fact, "the privilege cannot be invoked to avoid

disclosure of the details." Rogers, 340 U.S. at 373. However,

"[i]t is hornbook law that the waiver is limited to the

particular proceeding in which the witness appears." United

States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976) (co-

defendant's submission to deposition in unrelated criminal

proceeding not waiver of Fifth Amendment in proceeding in which

co-defendant called as witness); see also Johnson, 488 F.2d at

1210-11 (witness's disclosures in entering guilty plea at Rule 11

hearing do not constitute waiver of privilege at co-defendant's

trial); Kirane v. City of Lowell, 622 F. Supp. 262, 265 (D. Mass.

1985) ("[A] person who waives his privilege as to the one trial

[is not] estopped from asserting the privilege as to the same

matter in a subsequent trial or proceeding."); 8 J. Wigmore,

Evidence 2276, at 470-72 (McNaughton rev. 1961) ("The waiver

involved is limited to the particular proceeding in which the

witness volunteers the testimony or the accused takes the stand .

. . . Nor is his testimony at a first trial a waiver for a later

trial.") (emphasis in original). Therefore, Gary's contention

that Hopkins waived his privilege in the second trial by

testifying in the first trial is misplaced.6

6 The trial court arrived at the same conclusion by a different
path, namely, that Hopkins' decision to testify at the first
trial was not a voluntary, knowing, and intelligent waiver of his
Fifth Amendment privilege because he had not been fully apprised
of the consequences of his testimony with respect to the state
proceedings. In light of the above discussion, we need not
address the propriety of this decision. See In re Morganroth,

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C. The "Petite Policy"
C. The "Petite Policy"

Gary contends that his federal prosecution violated the

Justice Department's policy guarding against dual federal-state

prosecutions. See Petite v. United States, 361 U.S. 529 (1960)

(per curiam) (vacating conviction at government's request because

prosecution contravened internal Justice Department policy

forbidding multiple prosecutions for same criminal conduct).

"The Petite policy is an internal Justice Department policy

forbidding federal prosecution of a person for alleged

criminality which was 'an ingredient of a previous state

prosecution against that person'; exceptions are made only if the

prosecution will serve 'compelling interests of federal law

enforcement.'" United States v. McCoy, 977 F.2d 706, 712 (1st

Cir. 1992) (quoting Thompson v. United States, 444 U.S. 248, 248

(1980)) (citation omitted). See also Rinaldi v. United States,

434 U.S. 22, 24 n.5 (1977) (per curiam) (policy bars dual

federal-state prosecution). We have repeatedly held that the

Petite policy does not confer substantive rights on criminal

defendants. See McCoy, 977 F.2d at 712; United States v. Booth,

673 F.2d 27, 30 (1st Cir.), cert. denied, 456 U.S. 978 (1982).

D. Selective Prosecution
D. Selective Prosecution

Gary's contention that he was entitled to an

evidentiary hearing on the ground of selective prosecution is

similarly without merit. Although the exercise of prosecutorial

718 F.2d 161, 165 (6th Cir. 1983) (holding that waiver of
privilege against self-incrimination is "proceeding specific").

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discretion is subject to the constitutional guarantee of equal

protection and "may not be deliberately based upon an

unjustifiable standard such as race, religion, or other arbitrary

classification," Wayte v. United States, 470 U.S. 598, 608

(1985) (internal quotation marks and citations omitted), the

prosecutor is entitled to "a threshold presumption that [he]

acted 'in good faith for reasons of sound governmental policy.'"

United States v. Pe agar cano-Soler, 911 F.2d 833, 837 (1st Cir.

1990) (quoting United States v. Saade, 652 F.2d 1126, 1135 (1st

Cir. 1981)).

As an initial matter, we note that Gary did not timely

raise this issue before the district court. In a brief colloquy

on the morning of trial, Gary's counsel first raised the issue of

selective prosecution to the trial judge but admitted that she

had not filed a motion for an evidentiary hearing. In the

absence of exceptional circumstances -- and none are presented

here -- a claim of selective prosecution that is not raised prior

to trial is deemed waived. Tracey v. United States, 739 F.2d

679, 682 (1st Cir. 1984), cert. denied, 469 U.S. 1109 (1985).

Even if the motion had been timely filed, the burden is

upon the defendant to make an initial showing that an evidentiary

hearing is warranted. "A selective prosecution claim merits

evidentiary hearing if it alleges sufficient 'facts a) tending to

show that [defendant] has been selectively prosecuted and b)

raising a reasonable doubt about the propriety of the

prosecution's purpose' . . . unless the government can present

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countervailing reasons." Pe agar cano-Soler, 911 F.2d at 838

(quoting Saade, 652 F.2d at 1135). A trial judge's decision not

to hold an evidentiary hearing is reviewed for abuse of

discretion. See id.

Here, Gary did not make any threshold showing to the

trial court tending to show selective prosecution, i.e., "that

[he] was prosecuted while others similarly situated were not."

United States v. Bassford, 812 F.2d 16, 20 (1st Cir.), cert.

denied, 481 U.S. 1022 (1987). Gary attempts to make the required

showing to this Court by appending "statistics" purporting to

demonstrate evidence of systemic selective prosecution in the

District of Rhode Island. Gary did not present this information

to the trial court, and we will not consider on appeal

evidentiary submissions that were not presented below. United

States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983).7

E. Reliance on Perjured Testimony
E. Reliance on Perjured Testimony

Gary contends that his conviction was somehow tainted

by allegedly perjurious testimony that was elicited in his first

trial. Specifically, he contends that Officer John Arzoomanian

7 These so-called statistics, compiled by hand by defense
counsel based on "information and belief," are comprised solely
of a list of prosecutions brought in the District of Rhode Island
under 18 U.S.C. 922 and 924 from 1990-1994 purporting to show
that 70% of those prosecuted were members of a minority racial or
ethnic group. The statistics do not address whether similarly
situated whites were not prosecuted. Given the procedural
posture of this case, we need not resolve the difficult question
as to when raw data demonstrate a statistical disparity
sufficient to trigger the need for a hearing. See Pe agar cano-

Soler, 911 F.2d at 837-38.

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of the North Providence Police Department committed perjury at

the first trial when testifying as to why he did not fingerprint

the firearm that was seized from Gary. In Gary's first trial, in

response to a question on re-direct examination as to why he did

not attempt to recover fingerprints, he answered: "As far as the

size of the gun -- the surface of the weapon, also the people

involved in the case both had gloves on." (emphasis added). On

re-cross, Arzoomanian hedged:

Q. And you didn't bother to attempt to
lift a print in this case because
this man had gloves on; is that your
testimony?

A. Well, there were gloves found at the
scene and gloves found in the vehicle
also.

At the second trial, however, Arzoomanian testified that after

the arrest, but before the first trial, he learned that the

gloves actually belonged to rescue personnel. He explained:

"You asked the reason why I didn't print the weapon. I said

because he had gloves on. And I found out later, he didn't. At

that point, the evidence was handled by too many people." As

Gary's counsel ably emphasized during cross-examination,

Arzoomanian's testimony in the two proceedings was inconsistent.

Gary asserts that Arzoomanian therefore committed perjury.

Arzoomanian's testimony in the second trial did differ

in a troubling way from that given in the first trial. His

explanation of the inconsistency is weak because at the first

trial he testified that Gary actually had worn gloves at the time

of arrest -- not that he mistakenly believed at the time of

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arrest that Gary was wearing gloves. However, it is axiomatic

that inconsistent testimony is not per se perjurious. See United

States v. Dunnigan, U.S. , 113 S. Ct. 1111, 1116 (1993) ("A

witness testifying under oath or affirmation [commits criminal

perjury] if she gives false testimony concerning a material

matter with the willful intent to provide false testimony, rather

than as a result of confusion, mistake or faulty memory.")

(emphasis added). The defendant neither asked the trial court to

make any findings of perjury, nor moved for a mistrial on that

basis. We decline defendant's invitation to make a finding of

willful intent to provide false testimony based solely on an

inconsistency.

Moreover, because Gary's first trial did not result in

a conviction, he was not prejudiced even if Arzoomanian testified

falsely. Cf. Kyles v. Whitley, U.S. , 115 S. Ct. 1555, 1565

n.7 (1995) ("[A] conviction obtained by the knowing use of

perjured testimony is fundamentally unfair, and must be set aside

if there is any reasonable likelihood that the false testimony

could have affected the judgment of the jury.") (quoting United

States v. Agurs, 427 U.S. 97, 103 (1976)). Here, there is

neither a conviction nor any evidence that indicates that the

prosecution intentionally used perjured testimony. The first

trial ended with a hung jury, and Gary received a second trial at

which he was fully able to impeach Arzoomanian with his

inconsistent testimony at the first trial. In order to bootstrap

an allegation of prejudice stemming from Arzoomanian's testimony,

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Gary argues that his second trial was barred by the Double

Jeopardy Clause. This suggestion that double jeopardy prohibits

a second trial because of the unknowing presentation of

purportedly perjured testimony by a prosecutor is wholly

unsupported by case law.

Indeed, courts have held that prosecutorial misconduct

must rise to an egregious level for double jeopardy to bar a

retrial. A defendant cannot be retried only "where the

misconduct of the prosecutor is undertaken . . . to prevent an

acquittal that [he] believed at the time was likely to occur in

the absence of his misconduct." United States v. Wallach, 979

F.2d 912, 916 (2d Cir. 1992) (holding that prosecutorial

misconduct bars retrial after conviction overturned because of

perjured testimony only where this stringent standard met), cert.

denied, U.S. , 113 S. Ct. 2414 (1993); see also Oregon v.

Kennedy, 456 U.S. 667, 679 (1982) (retrial after defense moves

for mistrial barred by double jeopardy only where "the conduct

giving rise to the successful motion . . . was intended to

provoke the defendant into moving for a mistrial"); United States

v. Cartagena-Carrasquillo, No. 94-1235, slip op. at 17-19 (1st

Cir. Dec. 1, 1995) (when no evidence of prosecutorial misconduct,

defendant's successful motion for mistrial does not trigger

double jeopardy). In this case, there is absolutely no evidence

to buttress a finding of deliberate prosecutorial misconduct,

and, at worst, Arzoomanian's alleged perjury related to a

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collateral matter. Therefore, the Double Jeopardy Clause did not

prohibit Gary's second trial and subsequent conviction.

F. Application of Sentencing Guidelines
F. Application of Sentencing Guidelines

Gary asserts that the trial judge erred in calculating

his sentence under U.S.S.G. 4B1.4. This provision determines

the offense level and criminal history category of persons who

are subject to an enhanced sentence under the ACCA, 18 U.S.C.

924(e). Gary does not contest that he is an armed career

criminal. Rather, he argues that the trial judge incorrectly

applied U.S.S.G. 4B1.4(b)(3)(A) to arrive at an offense level

of 34 when she should have used 4B1.4(b)(1) to arrive at a

lower level.8 We review questions of interpretation under the

8 U.S.S.G. 4B1.4 provides in pertinent part:

(a) A defendant who is subject to an
enhanced sentence under the
provisions of 18 U.S.C. 924(e) is
an armed career criminal.

(b) The offense level for an armed career
criminal is the greatest of:
(1) the offense level applicable
from Chapters Two and Three; or
(2) the offense level from 4B1.1
(Career Offender) if applicable;
or
(3)(A) 34, if the defendant used or
34
possessed the firearm or
ammunition in connection with
a crime of violence or
controlled substance offense,
as defined in 4B1.2(1), or
if the firearm possessed by
the defendant was of a type
described in 26 U.S.C.
5845(a)[]; or
(B) 33, otherwise.[ ]
33

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guidelines de novo. See United States v. Fiore, 983 F.2d 1, 2

(1st Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1830

(1993).

U.S.S.G. 4B1.4 instructs the sentencing judge to

select the offense level that is the "greatest" of three

categories. First, there is the offense level applicable from

the underlying offense, which here is U.S.S.G. 2K2.1 dealing

with unlawful possession of a firearm. As Gary had at least two

prior felony convictions of either a crime of violence or a

controlled substance offense, he would receive a minimum offense

level of 24 under this provision. Because Gary "used or

possessed" the firearm "in connection with" another felony

offense (i.e., breaking and entering), which results in an

increase of four levels under U.S.S.G. 2K2.1(b)(5), Gary's

presentence report calculated his base offense level at 28. PSR

14-15. The report then added a three-level victim-related

adjustment for assaulting a police officer pursuant to U.S.S.G.

3A1.2(b) to reach an adjusted offense level of 31. PSR 20.

Gary disputes this interpretation of the guidelines.

This Court recently held that use of a firearm in an assault and

battery warranted the four-level enhancement under U.S.S.G.

2K2.1(b)(5). United States v. Sturtevant, 62 F.3d 33, 34 (1st

Cir. 1995) (per curiam). Gary's possession of a firearm during

the breaking and entering similarly qualifies as possession in

connection with another felony and would require enhancement to

level 28 were we to find that 2K2.1 controls. Thus, including

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the victim-related adjustment, the correct underlying offense

level "from Chapters Two and Three" of the guidelines was 31.

U.S.S.G. 4B1.4(b)(1).

The second category, which would adopt the offense

level from U.S.S.G. 4B1.1, is not applicable here. U.S.S.G.

4B1.1 does not apply because the "instant offense" (i.e., felon-

in-possession of a firearm) is not a crime of violence. See

U.S.S.G. 4B1.2 comment n.2; United States v. Doe, 960 F.2d 221,

226 (1st Cir. 1992).

The third category directs the court to adopt an

offense level of 34 if the "defendant used or possessed the

firearm or ammunition in connection with a crime of violence" or

33 in all other cases. Because the judge must select the

greatest of the three categories, 33 is the minimum "default"

offense level available under this provision without a downward

adjustment for acceptance of responsibility. See United States

v. George, 56 F.3d 1078, 1086 (9th Cir.), cert. denied, U.S.

, 116 S. Ct. 351 (1995). Gary's arguments for an offense level

any lower than 33 are misplaced.

Finding that Gary possessed the firearm in connection

with a violent crime (i.e., breaking and entering), the trial

judge adopted 34 as the offense level pursuant to

4B1.4(b)(3)(A).9 The court calculated the guidelines sentencing

9 At Gary's sentencing, the trial court held that "the
possession of a gun must be found to have either been used or to
have facilitated the commission of another offense" and
determined that Gary's possession of a firearm facilitated the
commission of the breaking and enterings.

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range to be 262-327 months (offense level 34, criminal history

category VI) and imposed a sentence of 290 months. Gary contests

the trial court's interpretation of U.S.S.G. 4B1.4(b)(3)(A).

Because a felon-in-possession charge is not itself a violent

crime, see Doe, 960 F.2d at 226, Gary argues that the court

should not have imposed an offense level of 34. He also contends

that the breaking and entering charge cannot be used as the

predicate violent crime because there is an insufficient "nexus"

between the firearm and the alleged state offense.

Making a determination under U.S.S.G. 4B1.4(b)(3)(A)

involves a two-step inquiry. First, the court must decide

whether the predicate offense is a violent felony. Second, the

court must consider whether the defendant used or possessed a

firearm in connection with that violent predicate offense.

In making the first inquiry, the court is to employ "a

formal categorical approach" irrespective of the actual factual

circumstances of the underlying offense. Taylor v. United

States, 495 U.S. 575, 600 (1990) (holding that court must look to

statutory definition of ACCA predicate offenses). To determine

what constitutes a violent crime under U.S.S.G. 4B1.4(b)(3)(A),

the court must turn to the definition provided in 4B1.2(1).

"[That] guideline proceeds to define as a crime of violence any

offense which 'otherwise involves conduct that presents a serious

potential risk of physical injury to another.'" Fiore, 983 F.2d

at 4 (quoting U.S.S.G. 4B1.2(1)(ii)). In that case, we held

that a prior conspiracy conviction for burglary of a commercial

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premise was a violent crime for purposes of the career offender

guideline, U.S.S.G. 4B1.2.10 Fiore, 983 F.2d at 4-5.

Breaking and entering similarly is a violent crime under U.S.S.G.

4B1.4. Cf. United States v. Patterson, 882 F.2d 595, 602 (1st

Cir. 1989) (holding that breaking and entering as defined in

Massachusetts is violent crime because unauthorized entry of

premises of another is a "crucial factor" in determining

applicability of catch-all provision of ACCA), cert. denied, 493

U.S. 1027 (1990).

With regard to the second part of the inquiry, the

trial court found that the defendant possessed a firearm in

connection with the breaking and entering. Here, the court is to

consider the facts to determine whether there is a sufficient

nexus between possession of the firearm and commission of the

underlying offense. See United States v. Samuels, 970 F.2d 1312,

1316 (4th Cir. 1992) (determining whether firearm was used "in

connection with" crime of violence "requires the sentencing court

to consider the factual circumstances surrounding the [18 U.S.C.]

922(g) offense.").

In construing a similar guidelines provision, U.S.S.G.

2K2.1(b)(5), we have held that "the phrase 'in connection with'

should be interpreted broadly and [ ] where a defendant's

10 We also note that in Fiore, as here, the commercial burglary

occurred in Rhode Island, which defines burglary, in part, as
breaking and entering a shop with the intent to commit robbery or
larceny. 983 F.2d at 4 n.6; see also R.I. Gen. Laws 11-8-4

(1994). This offense is a felony punishable by ten years
imprisonment. R.I. Gen. Laws 11-8-4.

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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). In Sturtevant, 62

F.3d at 33-34, we found that a felon who assaulted a victim with

his hands but carried a concealed shotgun used the firearm "in

connection with" the offense of assault and battery. This is

because "the weapon provides an added sense of security and has a

substantial potential for use in the course of the particular

crime in question." Id. at 34; United States v. Brewster, 1 F.3d

51, 54-55 (1st Cir. 1993) (selling drugs and automatic weapon to

undercover agent satisfied "in connection with" requirement of

U.S.S.G. 2K2.1(b)(5)). We see no reason to treat the identical

"in connection with" language in U.S.S.G. 4B1.4(b)(3)(A)

differently from that of 2K2.1(b)(5).

We therefore have no difficulty upholding the trial

court's findings that Gary possessed the firearm "in connection

with" the breaking and entering. Gary and Hopkins broke into at

least two commercial establishments. When arrested, both men

were in possession of firearms, and merchandise from one of the

stores was found in Gary's car. The trial court found that Gary

and Hopkins armed themselves when they decided to commit the

breaking and entering for the purpose of facilitating that crime.

"[W]e review the court's factfinding for clear error, giving due

deference to the court's application of the guidelines to the

facts." Thompson, 32 F.3d at 4 (citing 18 U.S.C. 3742(e)).

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There was ample support for the trial judge's findings of fact,

and we affirm Gary's sentence under U.S.S.G. 4B1.4.11

III. CONCLUSION
III. CONCLUSION

For the reasons stated herein, the conviction and

sentence of Raymond J. Gary are AFFIRMED.
AFFIRMED

11 Subsequent to oral argument in this case, the Supreme Court
issued an opinion in Bailey v. United States, U.S. , 64

U.S.L.W. 4039 (Dec. 6, 1995), which defined the word "use" for
purposes of 18 U.S.C. 924(c)(1) (imposing five-year minimum
term of imprisonment upon person who "during and in relation to
any crime of violence or drug trafficking crime . . . uses or
carries a firearm."). The Court held that a conviction under
924(c) requires the government to prove more than mere possession
but rather to show "active employment of the firearm." Bailey,

64 U.S.L.W. at 4041 (emphasis omitted). This decision does not,
however, affect Gary's sentence. Bailey does not apply to

U.S.S.G. 4B1.4(b)(3)(A), which reaches offenses in which the
defendant either "used or possessed" a firearm. Id.; see also

Bailey, 64 U.S.L.W. at 4043 (recognizing that sentencing

guidelines may provide enhancements for mere possession of
firearm during other offense).

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