United States v. Turner

United States Court of Appeals
For the First Circuit

No. 03-2608

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID TURNER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Circuit Judge,
Siler,* Senior Circuit Judge,
and Howard, Circuit Judge.

Robert M. Goldstein with whom Martin G. Weinberg, was on
brief, for appellant.
John-Alex Romano, Department of Justice, with whom Michael J.
Sullivan, United States Attorney, James F. Lang, Assistant United
States Attorney, and Joseph F. Palmer, Attorney, Appellate Section,
Criminal Division, Department of Justice, were on brief, for
appellee.

August 31, 2007

*
Of the Sixth Circuit, sitting by designation.
 HOWARD, Circuit Judge. Defendant David Turner and three

codefendants were convicted of several Hobbs Act and firearms

offenses based upon their attempt to rob an armored car facility.

Turner appeals his conviction and sentence.

I.

We recount the facts in the light most favorable to the

verdict, see United States v. Isler, 429 F.3d 19, 22 (1st Cir.

2005), reserving a discussion of additional facts for our analysis.

Turner and his fellow conspirators Carmello Merlino

(Merlino), Stephen Rosetti, and William Merlino were arrested on

February 7, 1999, as they converged upon their designated rallying

point -- TRC Auto Electric (TRC). From there, the conspirators had

intended to go to the Loomis Fargo armored car facility in Easton,

Massachusetts and rob it of over $50 million. To carry out this

plan, the conspirators had acquired an arsenal of several handguns,

an assault rifle, and a hand grenade, as well as masks, bullet

proof vests, police scanners, a radio frequency detector, large

duffle bags for the money, and vehicles that they intended to use

during the robbery and subsequent escape. The planned heist was an

FBI sting, however, and a purported fifth coconspirator, Anthony

Romano, was an FBI informant who had worn a wire during the

planning of the robbery.

At trial, Turner claimed entrapment based upon the FBI's

tactics in conducting the sting. His claim focused upon two FBI

-2-
agents, David Nadolski and William Cronin, and Romano. Turner

asserted that the FBI agents induced him to participate in the

crime so that they could pressure him to provide information

regarding the 1990 robbery of the Isabella Stewart Gardener Museum

in Boston, about which they thought he had knowledge.1

In 1996, Romano, then incarcerated, had contacted

Nadolski and provided information regarding the robbery of the John

Quincy Adams Library that led to the conviction of the perpetrator

and the recovery of stolen rare books. Romano remained in periodic

contact with Nadolski thereafter. In October 1997, Romano was

released from prison and obtained employment at TRC from his

friend, Merlino. Romano then contacted Nadolski with two pieces of

information: (1) that Romano believed that Merlino and his

associate, Turner, had been involved in the Gardener robbery; and

(2) that Merlino was planning to rob the Loomis Fargo facility.

Nadolski informed Cronin, who already believed that Merlino and

Turner (who was believed to be a member of Merlino's crew) were

somehow involved in the Gardener robbery. Romano was told to "keep

his ears open." Cronin ultimately met with Merlino three times

between January and late April 1998, to negotiate for the return of

the paintings. The negotiations ended after the third meeting,

1
The Gardener robbery was one of the largest art thefts in history
and resulted in the loss of several priceless paintings. Despite
the offer of a $5 million reward, the thieves have not been
apprehended nor have the paintings been recovered.

-3-
with Cronin expressing frustration that Merlino could not return

the paintings and would not voluntarily provide information about

them.

Between April and November 1998, Romano continued to

provide information about the Gardener robbery and the Loomis Fargo

plans -- notably, that Merlino wished Romano to arrange for an

insider at Loomis Fargo to provide them with information about the

interior of the facility. Nadolski, the case agent on the Loomis

Fargo matter, decided to proceed with a sting operation, with an

FBI agent acting as the insider. In November, Romano agreed to

become a "cooperating witness" for the FBI and to record various

conversations. At this time, Romano told Merlino that he had

finally procured an "insider." With the assistance of Loomis

Fargo's security personnel, the FBI provided Romano with

information about the facility and a purported diagram of the

interior that he could forward to Merlino. When Romano was

directed by Merlino to steal a vehicle and license plates, the FBI

provided Romano with them.

Merlino and Romano discussed possible accomplices for the

heist, and Merlino suggested Turner, making various comments about

Turner's criminal experience. Merlino's initial attempts to

contact Turner were unsuccessful, and Romano periodically inquired

about Turner's status, even suggesting that William Merlino be sent

to look for him. Turner ultimately responded.

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 Turner and Rosetti joined the conspiracy on January 13,

1999, after Merlino presented his plan to them at a restaurant.

Thereafter, matters sped ahead, with the conspirators discussing

weapons, tactics, vehicles, the advisability of taking hostages,

and the need to evade the police if stopped, as well as engaging in

"dry runs" with the insider.2 They selected February 7, 1999 as

the robbery date, agreeing to rendezvous at TRC in the early

morning.

Carmello Merlino was arrested upon his arrival; William

Merlino was arrested at a nearby gas station after he attempted to

enter TRC. Turner and Rosetti arrived at TRC in Rosetti's Honda,

and they proceeded to "square the block" -- check for following

vehicles and surveil the area for law enforcement personnel.

Apparently sensing something was amiss, they left the area and

drove to Turner's Chevrolet Tahoe that had been parked in a nearby

condominium complex parking lot. There they removed several large

duffle bags from the Honda and placed them in the Tahoe.

Thereafter, they returned in the Honda to TRC and again began

squaring the block. Law enforcement personnel arrested them after

a brief chase. A search of the Tahoe revealed weapons, ammunition,

2
The "insider" would be called via a special cell phone, then
leave the facility for the parking lot, ostensibly to get something
from his car. The conspirators intended to pretend to take the
insider hostage with a gun to his head and enter the facility. On
these dry runs an undercover FBI agent, acting as the inside man,
responded to the calls and went to his car in the parking lot as
arranged (while the conspirators observed him from a distance).

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masks, bullet proof vests, scanners, a radio frequency detector,

the box for the cell phone provided to the insider, and other

equipment. A search of TRC revealed the van that was to be used in

the heist, which contained other robbery equipment.

Turner was indicted for six offenses: conspiracy to

affect commerce by robbery in violation of 18 U.S.C. § 1951 (Hobbs

Act) (Count 1), attempt to affect commerce by robbery in violation

of 18 U.S.C. § 1951 (Count 2), carrying a firearm (grenade) in

relation to a crime of violence in violation of 18 U.S.C. § 924(c)

(Count 3), carrying a firearm (handguns and an assault rifle) in

relation to a crime of violence in violation of 18 U.S.C. § 924(c)

(Count 4), being a felon in possession of a firearm (grenade) in

violation of 18 U.S.C. § 922(g)(1) (Count 5), and being a felon in

possession of a firearm (handguns and an assault rifle) in

violation of 18 U.S.C. § 922(g)(1) (Count 6).

All defendants were tried together.3 In addition to the

tapes and physical evidence, the government presented the testimony

of Romano, Nadolski, and a host of other agents who had

participated in the sting. The government also presented a

stipulation that Turner was a convicted felon.

Turner's defense presented a theory of "vicarious

entrapment" -- that the FBI, through Romano, coerced an

unsuspecting third party (Merlino) into inducing Turner to join the

3
Their motion to continue the trial in light of the September 11,
2001 terrorist attacks upon the United States was denied.

-6-
conspiracy so that the FBI could use the prosecution as leverage on

Turner to cooperate in the Gardener robbery investigation. Turner

called FBI special agent Cronin as his only witness. Cronin

acknowledged that he was provided information by Romano about the

Gardener robbery throughout the conspiracy, and that he believed

Turner would be more likely to cooperate if he were facing serious

criminal charges. He also acknowledged that he visited both Turner

and Merlino immediately after their arrest in hopes that they would

provide information about the Gardner robbery in exchange for

possible assistance in this case.4 But he claimed that his

interest had been primarily in Merlino, not Turner, and that his

interest in both diminished after April 1998 because he concluded

that they could not facilitate the return of the Gardener

paintings. To rebut Turner's entrapment theory, the government

presented evidence that Turner had been convicted in 1989 and 1990

of two firearm offenses and one larceny/breaking and entering

offense, which the government used to argue that he was predisposed

to commit the instant offense. Although the court gave an

entrapment instruction, the jury found Turner guilty on all counts.

Between conviction and sentencing, Turner filed a motion

for a new trial pursuant to Fed. R. Crim. P. 33. Turner argued

that a new trial was warranted due to the government's improper

failure to produce significant exculpatory evidence, in violation

4
Nadolski provided similar testimony on cross-examination during
the government's case-in-chief.

-7-
of Brady v. Maryland, 373 U.S. 83 (1963). The evidence consisted

of several FBI investigative reports (302s) regarding a second FBI

informant who had provided information about Merlino's and Turner's

possible involvement in the Gardener robbery.5 Turner argued that

the 302s would have constituted powerful evidence supporting his

entrapment defense and would have eviscerated Cronin's testimony

that he had a reduced interest in Merlino and Turner after April

1998. The district court denied the motion and sentenced Turner to

460 months' imprisonment.

II.

Turner raises several challenges to his conviction and

sentence, including: (A.) a Hobbs Act conspiracy is not a "crime

of violence" for purposes of 18 U.S.C. § 924; (B.) the evidence was

insufficient to support a conviction for attempted robbery under

the Hobbs Act; (C.) the district court improperly instructed the

jury on the elements of vicarious entrapment and the necessary

impact on interstate commerce for a Hobbs Act violation; (D.) the

court erred in admitting Merlino's taped statements regarding

Turner's criminal past; (E.) the court erred in admitting evidence

of Turner's prior convictions and the radio frequency detector;

(F.) the court erred in denying Turner's motion to sever his trial

from Merlino's and to sever the felon-in-possession counts from the

5
Turner's motion was also based upon certain other law enforcement
reports, but his presentation here focuses on the 302s related to
the second informant.

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rest of the charges; (G.) the court erred in denying his motion for

a new trial; (H.) Turner was entitled to a sentence reduction for

acceptance of responsibility; and (I.) Turner is entitled to remand

for resentencing pursuant to United States v. Booker, 543 U.S. 220

(2005).6 Concluding that none of these challenges succeed, we

affirm Turner's conviction and sentence.

A. Hobbs Act Conspiracy as Crime of Violence

Turner argues that he is entitled to a judgment of

acquittal on the Section 924(c) counts because conspiracy under the

Hobbs Act is not a predicate "crime of violence."7 Turner reasons

that, because an overt act is not required for a conspiracy

conviction under the Hobbs Act, the crime is complete with the

making of the agreement (which is not a violent act). Turner

6
Turner raises certain other challenges that do not warrant
significant discussion. First, he argues that the trial should
have been postponed based upon the terrorist attacks upon the
United States on September 11, 2001. This contention fails as this
case did not concern terrorism and Turner presents no basis for
believing that the denial of a continuance in any way prejudiced
him. Second, he argues that he should have been permitted to
question Nadolski about his knowledge of the penalty for possession
of a grenade. This contention also fails, as Turner presents no
coherent claim of sentencing entrapment and the evidence made it
clear that Merlino (rather than Nadolski through Romano) brought up
the matter of grenades.
7
Section 924(c) provides an enhanced penalty for anyone who uses
or carries a firearm in relation to a "crime of violence." "Crime
of violence" is defined as "an offense that is a felony and -- (A)
has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (B)
that by its very nature involves a substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense." 18 U.S.C. § 924(c)(3).

-9-
relies upon Leocal v. Ashcroft, 543 U.S. 1 (2004) and United States

v. King, 979 F.2d 801 (10th Cir. 1992), in pressing this claim.

We review questions of statutory interpretation de novo.

See United States v. Frechette, 456 F.3d 1, 7 (1st Cir. 2006). The

overwhelming weight of authority holds that a Hobbs Act conspiracy

is a "crime of violence" for purposes of Section 924(c). See

United States v. Taylor, 176 F.3d 331, 337-38 (6th Cir. 1999);

United States v. Phan, 121 F.3d 149, 152-53 (4th Cir. 1997);

United States v. Elder, 88 F.3d 127, 129 (2d Cir. 1996); United

States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1992). These

courts reason:

A conspiracy, by its very nature, is a
collective criminal effort where a common goal
unites two or more criminals. Such a meeting
of the minds enhances the likelihood that the
planned crime will be carried out. Thus, when
a conspiracy exists to commit a crime of
violence,. . . the conspiracy itself poses a
substantial risk of violence, which qualifies
it under Section 924(c)(1) and Section 924
(c)(3)(B) as a crime of violence.

Elder, 88 F.3d at 129 (internal citation and quotation omitted).

This authority is consistent with our rationale for concluding that

a conspiracy to commit a crime of violence is a crime of violence

under the Bail Reform Act (which is worded identically to Section

924(c)). See United States v. Mitchell, 23 F.3d 1, 3 (1st Cir.

1994)(collecting cases reaching same result under the criminal

code). The absence of an overt act requirement does not alter our

view. See United States v. Fiore, 983 F.2d 1, 4 n.4 (1st Cir.

-10-
1992)(state conspiracy offense was "crime of violence" for purposes

of career offender guideline, even though no act was required); cf.

United States v. McKenney, 450 F.3d 39, 45 (1st Cir.), cert.

denied, 127 S. Ct. 537 (2006)(drug conspiracy as predicate offense

under Armed Career Criminal Act). Indeed, in Fiore, we stated that

the key inquiry in assessing the nature of a conspiracy is to ask

"conspiracy to do what?" -- as the object of the conspiracy is the

critical determinant of its nature. Id. at 3.

Turner counters that this authority has been undermined

by the Supreme Court's decision in Leocal. In that case the Court

concluded that the offense of driving while intoxicated which

causes serious bodily injury (under Florida law) was not a "crime

of violence" (as defined in 18 U.S.C. § 16). 543 U.S. at 10-13.

Leocal is inapposite for at least two reasons. First, the Court's

rationale was that the Florida statute criminalized conduct that

was merely accidental or negligent and thus not inherently

"violent." Id. at 8-10 (noting that 18 U.S.C. § 16 has higher mens

rea requirement). This is not the case with a Hobbs Act violation.

Second, the Court was not dealing with inchoate offenses. Id. at

8-9 ("We do not here deal with an attempted or threatened use of

force."). Leocal thus has not undermined the conclusion that a

conspiracy may qualify as a crime of violence.

Turner also contends that the Tenth Circuit's decision in

King properly acknowledges the significance of the absence of an

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overt act requirement in a parallel context. In King, 979 F.2d at

803. The Tenth Circuit concluded that conspiracy under New Mexico

law, which did not require proof of an overt act, was not a crime

of violence. The court held that because the crime of conspiracy

was complete upon "formation of the intent to commit a felony, and

does not require that any action be taken on that intent, the

elements of conspiracy to commit a violent felony do not include

the threatened use of physical force." Id.

We are unpersuaded by King, which, aside from being at

odds with our authority and the great weight of authority from

other circuits, does not consider the importance of the object of

the conspiracy, which under our case law is a critical inquiry.

See Fiore, 983 F.2d at 3.8 We conclude that conspiracy under the

Hobbs Act constitutes a "crime of violence" for purposes of 18

U.S.C. § 924(c).

B. Sufficiency of the Evidence of Attempted Robbery

Turner next argues that the evidence does not support a

conviction for attempted robbery. He maintains that, at the time

of the arrest, his actions could at best be characterized as "mere

preparation" because he was far from the designated target, Loomis

8
We note that the Tenth Circuit has more recently moved toward the
majority position. In United States v. Brown, the court observed
that, despite the fact that conspiracy punishes the agreement
rather than the substantive offense, "at minimum, an agreement to
accomplish the statutory elements of [a violent felony] necessarily
involves a substantial risk of physical force against the person or
property of the victim." 200 F.3d 700, 706 (10th Cir. 1999).

-12-
Fargo, and was driving away from the rallying point when

apprehended. To his view, the arrest should have been made after

the group arrived at Loomis Fargo or, at the earliest, when they

had assembled, prepared, and left TRC in their vehicles.

We assess a challenge to the sufficiency of the evidence

by determining whether the evidence, taken in the light most

favorable to the government, supports the guilty verdict. United

States v. Burgos, 254 F.3d 8, 11 (1st Cir. 2001). "To prove

attempt, the government must establish both an intent to commit the

substantive offense and a substantial step towards its commission."

Id. at 12 (internal citation omitted). While "mere preparation"

does not constitute a substantial step, a defendant "does not have

to get very far along the line toward ultimate commission of the

object crime in order to commit the attempt offense." United

States v. Doyon, 194 F.3d 207, 211 (1st Cir. 1999).

Under this standard, the evidence was sufficient to

support the verdict. Turner and his compatriots planned the

offense in great detail, assembled weapons and other robbery

equipment, prepared vehicles, surveiled the target, practiced dry-

runs, and gathered at the designated assembly point on the day

scheduled for the robbery. No more is required. See generally

United States v. LiCausi, 167 F.3d 36, 48 (1st Cir. 1999); United

States v. Chapdelaine, 989 F.2d 28, 30-33 (1st Cir. 1993). Indeed,

the facts in both LiCausi and Chapdelaine are strikingly similar to

-13-
the conduct of Turner and his cohorts in this case. The LiCausi

and Chapdelaine defendants surveiled the target, assembled weapons,

utilized disguises/robbery clothes, stole and positioned vehicles

for use in the robbery and subsequent escape, and used a radio

scanner to monitor police activity. See id. As in each of those

cases, the evidence here suffices to support a conviction for

attempted armed robbery. Moreover, there is no requirement that

the actions constituting the attempt have a particular geographic

proximity to the object of the substantive offense. See generally

Doyon, 194 F.3d at 212 (drug dealer's payment of past drug debt to

supplier constituted a substantial step in his attempt to make a

future narcotics purchase). And the fact that Turner may have

detected the FBI's surveillance and tried to abandon the attempt at

the last moment is irrelevant. See LiCausi, 167 F.3d at 48 (that

defendants abandoned the attempt after seeing a large number of

people in front of the target and intercepting a police call on a

radio scanner was inconsequential as they had already taken a

substantial step toward the robbery); United States v. Del Carmen

Ramirez, 823 F.2d 1, 1-2 (1st Cir. 1987)(that defendants hid guns

in grass and attempted to leave area when they spotted police is

irrelevant because defendants had already completed a substantial

step).9

9
We note a final flaw with Turner's position. In light of the
defendants' formidable arsenal and stated intent to "have it out"
with the police, waiting to make the arrest until the defendants
left TRC (with bullet proof vests on and weapons at ready) or

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 C. Jury Instructions

Turner raises two challenges to the jury instructions.

He first argues that the instructions were inadequate in their

description of the required impact on interstate commerce necessary

for a Hobbs Act conviction. Turner posits that the Supreme Court,

in United States v. Lopez, 514 U.S. 549 (1995), raised the impact

on interstate commerce required under the Hobbs Act from "any

impact" to a "substantial impact." Further, Turner asserts that

the factual impossibility of the robbery forecloses as a matter of

law the possibility that his crime had a substantial impact on

interstate commerce. He also argues that the court erred in

instructing the jury regarding the vicarious entrapment defense.

Turner says that the court should not have told the jury that the

government agent must "specifically target" the defendant and

"specifically instruct" the intermediary to pressure the defendant.

In assessing a challenge to jury instructions, our task

is to determine if the instructions, taken as a whole, fairly and

adequately submitted the issues in the case to the jury. See

United States v. Glaum, 356 F.3d 169, 178 (1st Cir. 2004), vacated

on other grounds, 543 U.S. 1099 (2005) (Booker).

Turner's first challenge fails. We have held

specifically that Lopez did not change the interstate commerce

arrived at Loomis Fargo would have exposed law enforcement
personnel and the public to unnecessary risk.

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requirement for a Hobbs Act conviction, stating that "the

government must show only that the ... conduct created a realistic

probability of a de minimis effect on interstate commerce." United

States v. Capozzi, 347 F.3d 327, 334-36 (1st Cir. 2003)(internal

citation and quotation omitted). The planned theft of over $50

million from a national armored car company more than qualifies.

See, e.g., United States v. Jimenez-Torres, 435 F.3d 3, 7 (1st Cir.

2006). Turner's impossibility contention also fails. "While the

substantive crime that is the object of the conspiracy may be

impossible to achieve, the conspiracy nonetheless qualifies as an

offense for which a person may be prosecuted" under federal law.

United States v. Sanchez-Berrios, 424 F.3d 65, 78 (1st Cir.

2005)(government sting operation); see also United States v.

Nguyen, 246 F.3d 52, 54 (1st Cir. 2001)("All that matters is that

[defendant] entered a conspiracy whose objective was to steal the

assets of an entity in interstate commerce. That the conspiracy

failed to accomplish such objective is irrelevant.").

We also reject Turner's challenge to the "vicarious

entrapment instruction." The district court's instruction stated:

Inducement by a codefendant constitutes
some vicarious entrapment by the government if
the following three elements are met:
First, that a government agent
specifically identified the defendant as the
desired target of the inducement or pressure;
second, that the government agent
encouraged the codefendant to induce or
pressure the defendant to commit the crime, or
his government agent's handlers condoned the

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 use of coercive inducements or pressure by the
codefendant; and
third, the codefendant, in fact,
applied pressure or an improper inducement to
overcome the defendant's reluctance to become
involved.

Turner's claim that the second part of the instruction included a

requisite that the government agent must "specifically instruct"

the codefendant to induce the defendant to participate in the crime

is baseless. The instruction explicitly allows for situations

where the codefendant, on his own, coerces the defendant into

joining the criminal enterprise, and the government merely condones

the action. This instruction is consistent with our case law on

the third-party entrapment defense. See United States v. Luisi,

482 F3d. 43, 54-56 (1st Cir. 2007) United States v. Rogers, 102

F.3d 641, 645 (1st Cir. 1996); United States v. Bradley, 820 F.2d

3, 7-8 (1st Cir. 1987).

Turner's alternative claim, that the instruction

improperly informed the jury that the government agent must

initially "target" the defendant may have more traction, as such a

requirement does not explicitly appear in Luisi, Rogers or Bradley,

and it makes the defense somewhat harder for a defendant to

establish. But even if there was error, and we are not saying that

there was, the error was harmless. To prevail on an entrapment

claim, the defendant must show that he was improperly induced by

the government to engage in criminal conduct and that he was not

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predisposed to engage in the conduct. Sanchez-Berrios, 424 F.3d at

76. Improper inducement consists of more than providing an

opportunity to a commit a crime; the inducement must create "a risk

of causing an otherwise unwilling person to commit the crime."

United States v. Walter, 434 F.3d 30, 36 (1st Cir. 2006)(internal

citation and quotation omitted). The something "more" generally

consists of excessive pressure by the government agent on the

defendant or the exploitation of a defendant's noncriminal motive,

for example, sympathy. Id. Failure to establish either improper

inducement or lack of predisposition defeats the defense. Id. at

35-36.

The evidence is strong that there was no improper

inducement and that Turner was predisposed to commit the crime.

Despite making several phone calls and pages to Turner, Merlino

made it clear that he was making an offer to participate which

Turner could readily decline. There was no hint of threats or any

other undue pressure -- simply the opportunity for a big score.

See Sanchez-Berrios, 424 F.3d at 76-77 (neither mere solicitation

nor the prospect of illicit gain constitutes improper inducement).

Moreover, Turner's own statements, either on tape or attributed to

him by Romano, and conduct clearly paint him as an experienced

criminal and an eager participant. Turner engaged in additional

surveillance of the target, ran an additional dry run with the

"insider," stated that the group should shoot it out with police if

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stopped, expressed concern that his Tahoe was bugged, commiserated

with Rosetti about the intense impatience one feels while waiting

to begin a planned robbery, and expressed concern that he and

Merlino should not be seen together because people know that when

they are together something illegal is going to happen. See

generally Walter, 434 F.3d at 37 (predisposition may be inferred

from the defendant's statements showing experience with criminal

activity). On this record, Turner's entrapment defense could not

prevail.

D. Merlino's Statements

Turner raises three challenges to the admission of

Carmello Merlino's taped statements about Turner's criminal past:

that his entrapment defense was fatally prejudiced by the admission

of the statements, that the admission of Merlino's statements

constituted error under Bruton v. United States, 391 U.S. 123

(1968), and that admission of the statements violated his right of

confrontation under Crawford v. Washington, 541 U.S. 36 (2004).

We begin with common ground. Both sides agree that the

statements are admissible against Merlino. Further, both sides

agree that statements in furtherance of the conspiracy, made by

Merlino after Turner joined the conspiracy, are admissible against

Turner. See generally LiCausi, 167 F.3d at 46. At issue are

statements made by Merlino before the January 13, 1999 meeting,

which the jury could understand to mean that Turner was proficient

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with firearms (e.g., "good with these"), could obtain them (e.g.,

"they got one or two"), and had participated in other robberies

(e.g., "knows how to do these").

Again here, any error with respect to the entrapment

defense was harmless. "The admission of improper testimony is

harmless if it is highly probable that the error did not influence

the verdict." Isler, 429 F.3d at 26 (internal citation omitted).

Factors to consider in this calculus include the importance of the

evidence, its uniqueness, how it was used, and the relative

strength of the opposing case. Id.

In our view, the statements in question were merely

cumulative, as Merlino made nearly identical comments about Turner

after January 13th. Moreover, as we have noted, Turner's own

comments were to the same effect. Finally, as we have also noted,

the evidence that Turner was not entrapped was strong, and the pre-

January 13th comments were not emphasized by the government in its

argument.

The Sixth Amendment challenges are also flawed.

Merlino's statements implying past criminal behavior on Turner's

part did not directly implicate Turner in the charged conspiracy.

Therefore, the admission of the statements could not constitute

Bruton error. See United States v. Smith, 46 F.3d 1223, 1227-28

(1st Cir. 1995) (no Bruton error where the codefendant's statement

does not expressly implicate the defendant). Similarly, there is

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no Crawford error, as Merlino's secretly recorded statements were

not "testimonial," within the meaning of Crawford. See generally

United States v. Brito, 427 F.3d 53, 58-59 (1st Cir. 2005); see

also Horton v. Allen, 370 F.3d 75, 83-85 (1st Cir. 2004)

(conspirator's statement to witness during private conversation was

not testimonial).

E. Other Evidentiary Claims

Turner raises two other challenges to the district

court's evidentiary rulings. First, he argues that the court erred

in admitting evidence of two prior convictions that were remote in

time and of dubious relevance. Second, he contends that the court

erred in admitting evidence of the radio frequency detector10 found

in his vehicle, which Turner maintains served no function other

than to prejudice the jury. We review a district court's

evidentiary rulings for abuse of discretion. United States v.

Mercado Irizarry, 404 F.3d 497, 500 (1st Cir. 2005). There was no

abuse of discretion.

The prior convictions were highly probative to rebut

Turner's entrapment defense and not too remote in time. See United

States v. Van Horn, 277 F.3d 48, 57-58 (1st Cir. 2002). Moreover,

given the nature of the conspiracy and Turner's role in providing

the firearms, the prior convictions were clearly relevant.

10
A radio frequency detector is a device for detecting hidden
listening devices.

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Similarly, the radio frequency detector was probative of the

sophisticated nature of the conspiracy and, thus, the merits of the

entrapment defense. Moreover, the admission of the radio frequency

detector is no more prejudicial than the admission of the police

scanners, which Turner does not challenge.

F. Severance

Turner next argues that the district court erred in

refusing to sever his felon-in-possession counts and in failing to

sever his trial from Merlino's. As to the former, Turner asserts

that the felon-in-possession counts prejudiced his entrapment

defense. As to the latter, Turner argues that a severance was

necessary to obtain Merlino's testimony that (1) Romano raised

Turner's name and pressured Merlino to recruit him, (2) Turner

initially rejected Merlino's overtures and Merlino continued to

apply pressure on him, and (3) Turner had received Merlino's

repeated pages and telephone messages.

We begin with the refusal to sever felon-in-possession

counts, assessing the district court's ruling for manifest abuse of

discretion. See Burgos, 254 F.3d at 13. To prevail on this claim,

Turner must show that the "improper joinder likely deprived him of

a fair trial." Id. at 14 (internal citation and quotation

omitted).

There was no abuse of discretion in the district court's

refusal to sever these counts. The felon-in-possession counts were

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properly tried with the other counts because they arose out of the

same conduct. See United States v. Rose, 104 F.3d 1408, 1416 (1st

Cir. 1997). In addition, any possible prejudice was limited by

Turner's stipulation to his status as a convicted felon. See id.

Moreover, and in any event, as discussed above, his prior

convictions were properly a part of the government's rebuttal of

his entrapment defense. See Van Horn, 277 F.3d at 57-58.

As to the severance of Merlino and Turner's trials, we

start by noting that individuals who are indicted together

generally should be tried together. United States v. Pena-Lora,

225 F.3d 17, 33 (1st Cir. 2000). Moreover, severance is

particularly disfavored in conspiracy cases. Id. To be entitled

to severance, the defendant must show "prejudice so pervasive that

a miscarriage of justice looms." LiCausi, 167 F.3d at 49. To

obtain a severance based upon the need for a codefendant's

testimony, the defendant must show "(1) a bona fide need for the

testimony; (2) the substance of the testimony; (3) its exculpatory

nature and effect; and (4) that the codefendant will in fact

testify if the cases are severed." Smith, 46 F.3d at 1231.

Under this standard, there was no manifest abuse of

discretion in denying the motion. The proffered testimony was of

limited, if any significance to Turner's entrapment defense because

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it did not tend to refute the overwhelming evidence of

predisposition nor indicate improper inducement.11

G. Motion for a New Trial

Turner argues that he is entitled to a new trial because

the government violated its obligations under Brady in improperly

suppressing the FBI 302 reports regarding a second informant - the

so-called "Chicofsky materials." Turner asserts that the

suppressed materials would have provided invaluable support for his

entrapment defense, and that the evidence would have enabled him to

impeach Cronin's testimony that his interest in Merlino and Turner

waned after April.

Under Brady, the government is required to turn over

exculpatory or impeachment evidence in its possession to the

defendant. United States v. Rivera-Rangel, 396 F.3d 476, 485 (1st

Cir. 2005). A new trial is warranted based upon a Brady violation

if the defendant establishes that (1) the evidence is material and

favorable to the defense, (2) the prosecution suppressed the

evidence, and (3) the defendant was prejudiced because there is a

reasonable probability that the result of the proceeding would have

been different had the evidence been disclosed to the defense. Id.

Suppressed evidence that is merely cumulative of evidence already

in the defendant's possession does not justify a new trial. Conley

11
Furthermore, any suggestion of improper inducement would be
refuted by Merlino's taped statements to the contrary.

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v. United States, 415 F.3d 183, 189 (1st Cir. 2005). We review the

district court's decision for manifest abuse of discretion.

Rivera-Rangel, 396 F.3d at 485-86.

Turner's Brady claim fails because the Chicofsky

materials, and related documents, are not nearly as beneficial as

Turner claims. All but two of the thirty-eight Chicofsky 302s

precede May 1, 1998, and the other two reports did not mention

Turner; this is consistent with Cronin's testimony that his belief

that Merlino would or could return the paintings waned after April

1998. Further, Turner was mentioned in only five of the 302s, and

Merlino's attempts to return the paintings, as recounted in the

302s, focused entirely on other individuals. Moreover, all this

evidence was merely cumulative of stronger evidence presented at

trial suggestive of the FBI's potential motivation to entrap

Turner. Indeed, Cronin's own testimony made it clear that he was

in active negotiations with Merlino in April 1998, that he was well

aware of Turner's connection to Merlino, that he had received

reports from Romano regarding the Gardener robbery throughout the

conspiracy, and that he visited Turner on the day of his arrest in

a last attempt to secure information regarding the Gardener

robbery. Most significantly, Turner's presentation continues to

focus on the FBI's potential motive to entrap him, while ignoring

the more significant issues of inducement and predisposition. On

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those issues, the Chicofsky materials contribute nothing.12 There

is nothing about the suppressed materials that suggests a

reasonable probability of a different result.

H. Sentencing

Finally, Turner raises two issues regarding his sentence.

He first claims that he was entitled to a reduction for acceptance

of responsibility, claiming that he did not deny the "essential

factual elements of guilt" but simply challenged the government's

conduct with his entrapment defense. While it is remotely

conceivable, in some rare circumstance, that a defendant who goes

to trial with an entrapment defense might still be entitled to such

a reduction, Turner's decision to defend himself at trial through

a weak claim of entrapment in no way places him in this narrow

theoretical category. See Sanchez-Berrios, 424 F.3d at 79; see

also Glaum, 356 F.3d at 180.

Turner next claims that he is entitled to a remand for

resentencing under Booker, as he has met the four-part plain error

test discussed in United States v. Antonakopoulos, 399 F.3d 68, 78-

79 (1st Cir. 2005)(there was error, the error was plain, the error

affected substantial rights of the defendant, and the error

12
Turner's other arguments regarding Chicofsky -- that Chicofsky
should not have been permitted to invoke the Fifth Amendment at the
hearing and that Turner should have been permitted to examine him
question by question -- are too perfunctorily presented to merit
review. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).

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undermined the fairness or integrity of the judicial proceedings).

Turner meets the first two parts, because the district court

treated the guidelines as mandatory. See Isler, 429 F.3d at 29.

However, to satisfy parts three and four, Turner "must show a

reasonable probability that the district court would impose a

different sentence more favorable to the defendant under the new

advisory guidelines." See United States v. McLean, 409 F.3d 492,

505 (1st Cir. 2005)(internal citation and quotation omitted).

Turner cannot carry this burden. The district court rejected his

request to be sentenced at the bottom of the guideline range, and

such a refusal "speaks volumes" about the defendant's chances on

remand. Id. Moreover, a review of the sentencing materials

reveals no indication that the district judge would be inclined to

impose a lower sentence. See id.13

III.

For the reasons stated above, Turner's conviction and

sentence are affirmed.

13
Turner also argues that the district court erred in applying
U.S.S.G. § 2X1.1 instead of § 2B3.1, and, alternatively, that the
district court erred in failing to grant a reduction under U.S.S.G.
§ 2X1.1(b)(2). Both of these arguments are presented without
authority and in such a perfunctory manner that we deem them
waived. See Zannino, 895 F.2d at 17.

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