United States Court of Appeals
For the First Circuit
No. 03-2180
UNITED STATES OF AMERICA,
Appellee,
v.
RANDOLPH CARPENTER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, Senior U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
James M. Fox for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Dulce
Donovan, Assistant United States Attorney, were on brief for
appellee.
March 29, 2005
CYR, Senior Circuit Judge. Defendant Randolph Carpenter
appeals from the judgment of conviction and sentence entered by the
district court. While on patrol in November 2001, two Providence
police officers stopped a speeding vehicle driven by Carpenter.
When one of the officers walked up to the passenger-side window of
the vehicle, he observed Carpenter was holding a handgun.
Carpenter promptly sped off, and the police pursued a high-speed
chase, which abruptly ended when Carpenter then ran into a jersey
barrier. Carpenter fled on foot, then crossed a busy interstate
highway, where he was apprehended and arrested. The police
discovered the handgun on the passenger seat of Carpenter’s
vehicle, and seized a small bag of marijuana. After waiving his
Miranda rights in writing, Carpenter admitted that he had bought
the handgun for protection two weeks earlier from one Dennis
Morrow.
In due course, Carpenter was indicted for possessing a
firearm following a felony conviction, see 18 U.S.C. § 922(g),
which requires proof of the following elements: (i) the defendant
is a convicted felon; (ii) who knowingly possessed a firearm; and
(iii) the firearm was in or affected interstate commerce. See
United States v. Liranzo, 385 F.3d 66, 69 n.2 (1st Cir.), cert.
denied, 125 S. Ct. 637 (2004). Carpenter stipulated to the first
and third elements of the offense, preserving for trial solely the
issue as to whether he had actual or constructive possession of the
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firearm seized from the vehicle which he was driving. See id.
Actual possession may be established, inter alia, with evidence
that the defendant had either an ownership or a possessory interest
in the firearm, whereas constructive possession can be based upon
evidence that the defendant knowingly had the ability, as well as
the intent, to exercise dominion and control over either the
firearm, or the area wherein the firearm was located. See United
States v. Carlos Cruz, 352 F.3d 499, 510 (1st Cir. 2003), cert.
denied, 125 S. Ct. 176 (2004).
At trial, the prosecution presented evidence of actual
possession as well as constructive possession, consisting of (i)
Officer MacGregor’s testimony that he had seen Carpenter holding
the gun in his hand at the time of the traffic stop, and (ii)
Carpenter’s post-arrest confession that he was the owner of the
gun. Defense counsel sought to counteract that evidence by
contending that the police officers lied, and by noting that no
fingerprints had been found on the gun.1
The government’s constructive possession theory was
premised primarily upon the eventual retrieval of the weapon from
the passenger-side seat of the vehicle, an area over which
Carpenter unquestionably had exercised dominion and control.
1
To counter Carpenter’s contention about the absence of
fingerprints on the weapon, the government adduced expert testimony
to the effect that it is exceedingly difficult to lift viable
fingerprints from the surfaces of this particular weapon.
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Defense counsel contended that the police had found the gun
elsewhere in the car, then planted the gun on the passenger-side
seat in an effort to frame Carpenter, and that the government had
not established that Carpenter owned the vehicle he was driving
(and hence the handgun).
During its deliberations, the jury transmitted a note to
the court, inquiring whether “it is possible to find [out] the
identity of the owner of the [vehicle].” The court first responded
that the government had adduced no evidence as to ownership of the
vehicle, then added that “it doesn’t matter who the owner was,”
because “[t]he important thing is that this defendant was driving
the car, the vehicle, at the time.” After the jury resumed its
deliberations, defense counsel objected, contending that the
court’s supplemental jury instruction improperly prejudiced the
defense by suggesting that the jury should not consider a critical
component of the defense theory against “constructive possession”
– viz., the fact that the government had not adduced evidence as to
the identity of the owner of the vehicle. The district court
overruled the objection, and the jury subsequently returned its
verdict of guilty.
On appeal, Carpenter contends that the district court's
jury instruction constitutes an abuse of discretion.2 We agree
2
Carpenter does not contend on appeal that the district court
erred in instructing the jury that there was no dispute that
Carpenter had been driving the vehicle. See, e.g., United States
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that it would have done better had the district court simply
responded to the specific question posed by the jury – viz., had it
instructed that the government had adduced no evidence as to the
identity of the vehicle’s owner – and refrained from further
comment regarding its import vel non. See United States v. Shay,
57 F.3d 126, 134 (1st Cir. 1995) (noting that excluding evidence
cannot be considered harmless error where it “went to heart of the
defense”); United States v. Ouimette, 753 F.2d 188, 193 (1st Cir.
1985) (same); see also Perez v. United States, 297 F.2d 12, 16 (5th
Cir. 1961) (noting that jury instructions should “not unduly
emphasize the theory of the prosecution, thereby deemphasizing
proportionally the defendant’s theory”).3 Even assuming arguendo
that the challenged instruction was erroneous, however, any error
was harmless. See United States v. Gray, 199 F.3d 547, 550 (1st
Cir. 1999).
“The correct inquiry is whether, assuming that
the damaging potential of the . . . [excluded
evidence] were fully realized, a reviewing
court might nonetheless say that the error was
harmless beyond a reasonable doubt. Whether
such error is harmless in a particular case
depends upon a host of factors, all readily
accessible to reviewing courts. These factors
v. Sabetta, 373 F.3d 75, 80 (1st Cir.) (“A district court must use
extreme caution in answering questions from juries so as not to
usurp the jury’s fact finding role.”), cert. denied, 125 S. Ct. 433
(2004). Hence, we need not address the matter.
3
The government has not argued on appeal that Carpenter failed
to adduce enough evidence of his defense theory to require its
submission to the jury in the first instance.
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include the importance of the witness'
testimony in the prosecution's case, whether
the testimony was cumulative, the presence or
absence of evidence corroborating or
contradicting the testimony of the witness on
material points, the extent of
cross-examination otherwise permitted, and, of
course, the overall strength of the
prosecution's case.”
Dolinger v. Hall, 302 F.3d 5, 12 n.6 (1st Cir. 2002) (citation
omitted). The burden of persuasion rests with the government to
demonstrate harmless error, see United States v. Ventura-Cruel, 356
F.3d 55, 64 (1st Cir. 2003), and we may not declare a
constitutional error harmless where there is a "reasonable
possibility" that it influenced the verdict, see United States v.
Mulinelli-Navas, 111 F.3d 983, 992 (1st Cir. 1997).
First, we determine what impact the challenged
instruction on the vehicle’s ownership may have had on the defense.
The ownership issue was relevant both (i) to refuting the
government’s evidence that Carpenter had constructive possession of
the gun, and (ii) to the defense theory that the arresting officers
framed Carpenter. More specifically, the defense invited the jury
to adopt the following theory of the case: The government did not
adduce evidence of the vehicle’s ownership because the vehicle did
not belong to Carpenter. The gun – which belonged to the owner of
the vehicle and of which Carpenter had no prior knowledge – was
originally located somewhere in the vehicle, other than on the
passenger seat. The police officers did not find the gun until
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they conducted a post-arrest search of the vehicle, and planted it
on the vehicle’s passenger seat to bolster their perjurious
testimony that Carpenter had handled the gun during the initial
traffic stop and the car chase.
We conclude that the district court’s instruction was
harmless, beyond a reasonable doubt, for two principal reasons.
First, the court did not instruct the jury to disregard positive
evidence that the vehicle did not belong to Carpenter, but rather
to disregard the fact that the government introduced no evidence –
either way – as to its ownership. Even now, Carpenter makes no
contention that he did not own the vehicle. Hence, the jury could
only have speculated as to its ownership, surely a dubious
launching pad for the attenuated defense theory.
Second, vehicle ownership was simply the prefatory
element in the defense theory, and even if the jury were to have
assumed from the government’s failure of proof that Carpenter did
not own the vehicle, it would not have adopted the defense theory
without first having made an additional series of attenuated
inferences: (i) the gun also belonged to the vehicle’s owner, not
the vehicle’s current user/driver (viz., Carpenter); (ii) Carpenter
neither knew of the gun’s presence in the vehicle, nor intended to
exercise control or dominion over it; and (iii) the police had not
only the opportunity to “frame” Carpenter (viz., the presence of a
“hidden” gun in the vehicle not belonging to Carpenter), but the
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motive. From the verdict, we conclude that the jury decided not to
disbelieve the police officers’ account of the traffic stop,
Carpenter’s brandishing of the gun, nor the results of the ensuing
vehicle inspection, and that therefore, there is no "reasonable
possibility" that the district court’s instruction influenced the
jury verdict. See Mulinelli-Navas, 111 F.3d at 992.
Carpenter’s undisputed conduct tended to belie any
defense contention that he did not know the gun was in the car.
Besides the gun, the only incriminating evidence seized from the
vehicle was a small amount of marijuana, and the jury would have
had to draw the implausible inference that Carpenter recklessly
would have fled a traffic stop, run from his wrecked vehicle, and
engaged the police in a life-threatening foot pursuit across a busy
interstate highway, all to avoid relatively minor drug possession
charges. See United States v. Otero-Mendez, 273 F.3d 46, 53 (1st
Cir. 2001) (“‘Evidence of a defendant's flight . . . may be
presented at trial as probative of a guilty mind if there is an
adequate factual predicate creating an inference of guilt of the
crime charged.’”) (emphasis added; citation omitted). The
desperation of Carpenter's flight affords persuasive support for
the inference that he knowingly possessed the handgun.
Any putative instructional error was harmless in light of
the overall strength of the government’s case. See Dolinger, 302
F.3d at 12 n.6. The vehicle’s ownership was relevant only to the
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constructive possession issue, not actual possession, and the
detail and consistency of the police officers’ accounts vouched for
their credibility. See, e.g., United States v. Salimonu, 182 F.3d
63, 71 (1st Cir. 1999) (noting that witnesses’ testimony was
“detailed and basically consistent,” affording the jury
“substantial evidence of [defendant’s] guilt”). For example,
Officer MacGregor testified, that Carpenter did not put his vehicle
into park when he was pulled over (viz., “[t]he reverse lights did
not flicker on”), which suggested to MacGregor that Carpenter might
drive away while MacGregor walked up to his vehicle. MacGregor
described how Carpenter was looking back in his side-view mirror at
the parked police cruiser, and how the gun that he observed in
Carpenter’s hand was “black, unique,” “an old style gun” which “had
two round cylinders in the rear.” He testified that, when he made
eye contact with Carpenter, Carpenter looked “startled,” and
immediately sped off. Finally, the account given by MacGregor’s
fellow officer, Sion, is entirely consistent with that provided by
MacGregor. If the jury credited this testimony, the ownership of
the vehicle was comparatively irrelevant.4
4
We can ascribe no conclusive significance to the fact that
the jury chose to ask this particular question. Although Carpenter
argues that this demonstrates that the jury had rejected the
government’s evidence of actual possession, and was considering an
acquittal with respect to constructive possession, it is no less
plausible that the jury had decided that the government had proven
actual and/or constructive possession beyond a reasonable doubt,
and inquired about the vehicle’s ownership merely to determine
whether that evidence was adduced at trial and if so, was
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The government also adduced evidence of Carpenter’s post-
arrest oral confession that he had purchased the gun two weeks
earlier.5 His confession was quite detailed (viz., including the
name of the person from whom he bought the gun, and his need for
the gun), and it is entirely reasonable to conclude that the jury
would accord it considerable weight in determining the issue of
possession. See Arizona v. Fulminante, 499 U.S. 279, 296 (1991)
(“‘[T]he defendant’s own confession is probably the most probative
and damaging evidence that can be admitted against him. . . .
Certainly, confessions have a profound impact on the jury.’”)
(citation omitted); Ventura-Cruel, 356 F.3d at 64 (“‘Confessions
are by nature highly probative and likely to be at the center of
the jury's attention.’”) (citation omitted); Lufkins v. Leapley,
965 F.2d 1477, 1482 (8th Cir. 1992) (finding trial error harmless
on the ground that “[a] detailed confession is the most probative
of all evidence. . [and] a full confession by a defendant has an
extraordinary impact on a finder of fact”). Although Carpenter did
not sign a written confession, given its detail, the jury likely
consistent with its decision to convict.
5
Notwithstanding the fact that police gave Carpenter Miranda
warnings before he confessed, he attempted to argue at trial that
the police beat him after his arrest, thus inviting an inference
that his confession might have been coerced. See, e.g., United
States v. Bezanson-Perkins, 390 F.3d 34, 39 (1st Cir. 2004). Not
only does the record contain no evidence supporting this argument,
the government adduced hospital records reflecting that Carpenter
bore no indication of having been the victim of a post-arrest
beating.
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credited the testimony of the police officer who took the oral
confession. See United States v. Flores, 63 F.3d 1342, 1377 (5th
Cir. 1995) (“When the evidentiary value of an out-of-court
confession depends on the credibility of the officer who repeats
it, the court correctly allows the jury to make this call.”).
The defense does not contend – let alone adduce any
evidence – that the vehicle belonged to someone other than
Carpenter, nor that the facts elaborated in his oral confession
were the product of a police fabrication. Accordingly, we conclude
that any error in the district court instruction was harmless.
Carpenter further argues that the district court plainly
erred by imposing a sentence which violates the recent decision in
United States v. Booker, 125 S. Ct. 738 (2005), which held that the
Sentencing Guidelines are advisory rather than mandatory. See
United States v. Antonakopoulos, 399 F.3d 68, 74 (1st Cir. 2005).
We review his argument for plain error, and it is his burden to
demonstrate that he was prejudiced by the district court sentence,
in that there is a “reasonable probability” that the court would
have imposed a lesser sentence if the sentence had been after
Booker, viz., if the district court had known that the Guidelines
did not mandate the sentence it imposed. See id. at 75. Carpenter
cannot satisfy this burden. The district court stated at
sentencing:
This defendant is a danger to the
community. . . . I give him the longest
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sentence I can give him for the protection of
society. In this case it’s ten years, 120
months, to be served consecutively to the
state sentences he is now serving. I don’t
think I have discretion to do otherwise. Even
if I did, this is what I would do in order to
separate him from society.
(Emphasis added.) The district court thus made clear that there is
no reasonable probability that it would have imposed a lesser
sentence under the Booker rubric. See Antonakopoulos, 399 F.3d at
81 (“[I]f the district judge has said at sentencing that he would
have reached the same result regardless of the mandatory nature of
the Guidelines, that is a powerful argument against remand.”). As
Carpenter could gain nothing from a Booker remand, the sentence
properly imposed by the district court must be affirmed.
Affirmed.
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