United States v. Gilliam, Darron G.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 1998 Decided February 26, 1999

No. 97-3084

United States of America,

Appellee

v.

Darron Gregory Gilliam,

Appellant

Consolidated with

No. 97-3085

Appeals from the United States District Court

for the District of Columbia

(No. 96cr00057-01)

(No. 96cr00057-02)

Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant Darron Gregory Gilliam. With him on
the briefs was A. J. Kramer, Federal Public Defender.

Edward C. Sussman, appointed by the court, argued the
cause and filed the briefs for appellant Ricardo Matthew
Gross.

Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and John R. Fisher, Assistant U.S.
Attorney.

Before: Silberman, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Darron Gilliam and Ricardo Gross
appeal their convictions for armed bank robbery and related
offenses on the grounds that the district court erred in
denying their motions to suppress evidence and statements,
for severance under Fed. R. Crim. P. 14, and for judgment
notwithstanding the verdict on the firearms charges. Gross
also challenges the district court's denial of his motion for
judgment notwithstanding the verdict on his conviction for
carjacking.1 Finally, Gilliam challenges his sentence under
the "three strikes" statute, 18 U.S.C. s 3559(c) (1994), on the
ground that the government failed to prove that he had
previously been convicted of two serious violent felonies. We
affirm all of the convictions except Gilliam's s 922(g) firearms
conviction.

__________
1 Gross also contends that he was severely prejudiced by the
district court's refusal to make an in limine ruling as to whether the
government could cross-examine his wife about an alleged inappro-
priate contact with a juror. The district court declined to rule
before direct examination, and Gross chose not to put his wife on
the stand. Because he did not call his wife to testify, Gross
forfeited his right to raise this issue on appeal. See Luce v. United
States, 469 U.S. 38, 43 (1984).

I.

As a result of a robbery of the Hospitality Community
Federal Credit Union, Gilliam and Gross were indicted for
armed bank robbery, 18 U.S.C. s 2113(a) and (d) (1994); the
use or carrying of two firearms during a crime of violence, id.
s 924(c) (1994); possession of firearms by a convicted felon,
id. s 922(g) (1994); armed carjacking, D.C. Code Ann. ss 22-
2903 and 22-105 (1981); and first-degree theft from a senior
citizen, id. ss 22-3811, 22-3812(a), 22-3901 and 22-105
(1981).2 They were found guilty by the district court of the
felon-in-possession count and by the jury on all other counts.3
A third defendant, Jerome Thomas, was acquitted on all
counts. The district court sentenced Gilliam to two mandato-
ry terms of life imprisonment under the "three strikes"
statute, 18 U.S.C. s 3559(c), for armed robbery and the
s 924(c) firearms conviction, and Gross to an aggregate of 228
months imprisonment.

We review the evidence in Part II, where we address
appellants' contention that the district court erred in denying
their motions to suppress evidence and statements because
the police lacked probable cause for a warrantless search of a
bag in Gilliam's car. In Part III, we address appellants'
severance claims. In Part IV, we address their challenges to
their firearms convictions. Finally, in Part V, we address
their challenges to their sentences.

II.

At approximately 7:30 a.m. on January 31, 1996, two
masked men robbed the Hospitality Community Federal
Credit Union in Northeast Washington, D.C., taking over
$142,000 in cash and $242,000 in food stamps. The masked
men confronted Ellsworth Brewer, the bank manager, as he

__________
2 Prior to trial, on the government's motion, the district court
dismissed the charge of possession of two firearms during a crime
of violence (the armed carjacking), in violation of D.C. Code
ss 22-3204(b) and 105.

3 The defendants elected a bench trial on the s 922(g) charges.

was opening the bank's parking lot gate so that he could park
his car, which was nearby with the driver's door open and the
engine running. One man pressed something hard into
Brewer's back that Brewer thought was a gun; the masked
man said, "[y]ou know what this is. Don't act crazy." Brew-
er saw about two inches of a gun barrel protrude from the
hands of the other man. While one masked man led Brewer
to the bank, the other parked Brewer's car in the gated lot.
The masked men then forced Brewer to let them into the
bank; while one tied Evangeline Brown (another employee
who was already in the bank) with duct tape, the other told
Brewer that if he missed the combination for the vault, he
would be shot in the head and his brains blown out. After
obtaining currency and food stamps from the vault, the
masked men tied Brewer and fled, taking Brewer's car.4
Brewer and Brown described the masked men as being about
six feet tall: one was wearing a light tan or beige trench-coat,
dark corduroy pants, and gloves; the other was wearing a
dark three-quarter length coat.

While canvassing the crime scene, the police found Gilliam's
wallet, with his photo identification, in the bank's parking lot,
along with a laundry bag like that used by the masked men to
carry the currency and food stamps from the bank. Upon
determining that Gilliam had a criminal record, including a
prior armed robbery, the police went to his home at approxi-
mately 9:30 a.m. and learned from a neighbor that about an
hour earlier, Gilliam drove up with two other men in a gray
Plymouth Reliant K car, unloaded cardboard boxes and plas-
tic bags, and took them into Gilliam's house. About 45
minutes later, the police saw two men leave Gilliam's house
and get into the same gray car, which had been parked in
front of the house. Each man was carrying a plastic bag;
one was wearing a tan trench-coat and the other was wearing
a dark coat.

The police followed the car until it stopped and its two
occupants, Jerome Thomas and Ricardo Gross, got out. At

__________
4 Brewer's car was found more than a month after the robbery
with a broken steering wheel column near K Street, N.E.

that point, the police ordered Thomas and Gross away from
the car and to the sidewalk, where they were placed on the
ground and handcuffed. Through the open car door, a police
officer saw the tan trench coat draped across the front
passenger seat and partially hanging over a plastic bag.
Believing that the bulky, bundled objects outlined in the bag
were likely proceeds from the robbery, the officer searched
the bag and found over $15,000 in cash and $1,270 in food
stamps. Gross and Thomas were then formally arrested;
Gilliam was arrested at approximately the same time near his
house.5 A subsequent search of Gilliam's home led to the
recovery of two ski masks, gloves, a 9mm handgun, a semiau-
tomatic pistol, a piece of paper stamped with the name of the
credit union, approximately $117,500 in cash, and approxi-
mately $136,000 in food stamps. A subsequent search of the
car produced two additional plastic bags found in the back
seat containing $900 in currency, money wrappers, checks
block-stamped from the credit union, and a small key from a
teller's cash drawer that fit the drawers of the bank. In the
pocket of the trench coat the police found a roll of duct tape,
which contained Gross' fingerprint, that matched the duct
tape used to tie Brown and Brewer at the bank. A sales
receipt and registration in the glove box confirmed that the
car was Gilliam's.

Probable cause to arrest exists where "the facts and cir-
cumstances" within a law enforcement officer's knowledge are
"sufficient to warrant a prudent [person] in believing that [the
suspects] had committed or [were] committing an offense."
Beck v. Ohio, 379 U.S. 89, 91 (1964); see also Henry v. United
States, 361 U.S. 98, 102 (1959); Brinegar v. United States,
338 U.S. 160, 175 (1949); Lincoln v. United States, 992 F.2d
356, 358 (D.C. Cir. 1993). Probable cause to search exists
where in view of the "totality of the circumstances," "there is

__________
5 Both appellants engaged in incriminating conduct. When
Gross was told that he was under arrest, he asked, "What is it?
Did somebody see the car?" He later told one of the detectives in
the transport car "I messed up this time." Gilliam, in identifying
himself to the police, reached for his wallet and discovered that it
was missing.

a fair probability that contraband or evidence of a crime will
be found in a particular place." Illinois v. Gates, 462 U.S.
213, 238 (1983); United States v. Turner, 119 F.3d 18, 20
(D.C. Cir. 1997). "Although probable cause to arrest and
probable cause to search have different emphases," United
States v. Dawkins, 17 F.3d 399, 404 (D.C. Cir. 1994), articulat-
ing when probable cause exists is a "common sense" determi-
nation, which turns on the "practical considerations of every-
day life." Gates, 462 U.S. at 231 (quoting Brinegar, 338 U.S.
at 175). While each fact standing alone may be insufficient,
the combination of all of the facts can establish probable
cause, United States v. Catlett, 97 F.3d 565, 574 (D.C. Cir.
1996); United States v. Halliman, 923 F.2d 873, 881 (D.C.
Cir. 1991), and certain conduct that may appear "innocent to
a lay person may have entirely different significance to an
experienced [law enforcement] officer." Catlett, 97 F.3d at
573-74 (quoting United States v. Hicks, 752 F.2d 379, 384
(9th Cir. 1985)). We review the legal conclusion of probable
cause de novo, the district court's findings of historical fact
for clear error, and we give due weight to inferences drawn
from the evidence by law enforcement officers and the district
court. See Ornelas v. United States, 517 U.S. 690, 699 (1996);
United States v. Harrison, 103 F.3d 986, 989 (D.C. Cir. 1997).

Applying these principles, we find no error in the district
court's denial of appellants' motions to suppress the evidence
found in the bag in Gilliam's car.6 Based on the physical
evidence at the robbery scene, the eyewitnesses' statements,
and the tight time frame, as well as their own observations
and those of Gilliam's neighbor, the police had reason to
believe that the two men who got into Gilliam's car had
participated in criminal activity. Compare Brinegar, 338 U.S.

__________
6 The government contends that only Gilliam preserved his
Fourth Amendment appeal because Gross conceded that there was
no basis upon which to challenge the seizure of evidence from the
car if officers could rely on their collective knowledge to establish
probable cause. We disagree. Although Gross' counsel acknowl-
edged the legal standard, he proceeded to attack the officers'
collective knowledge and argued in the district court that there was
no basis for a probable cause finding.

at 175-76, and Catlett, 97 F.3d at 573, and Halliman, 923
F.2d at 881-82, and United States v. Young, 598 F.2d 296,
298-300 (D.C. Cir. 1979), and Coleman v. United States, 420
F.2d 616, 621 (D.C. Cir. 1969), with Beck, 379 U.S. at 91, and
Henry, 361 U.S. at 100-02. The same evidence provided a
sufficient foundation for the police to believe that a plastic
bag carried into the car by the two men leaving Gilliam's
home was likely to contain proceeds of the robbery. See
Gates, 462 U.S. at 238; Turner, 119 F.3d at 20; Dawkins, 17
F.3d at 404; United States v. Garrett, 959 F.2d 1005, 1007-08
(D.C. Cir. 1992); United States v. Caroline, 791 F.2d 197, 201
(D.C. Cir. 1986). The police officer at the scene of the
robbery noted that the bank manager had not told him that
either a wallet or laundry bag had been in the parking lot
prior to the robbery. It was reasonable, therefore, for the
police to connect the wallet and bag with the masked men and
to believe that Gilliam's home or the car in which he had been
seen after the robbery might contain evidence of the robbery.
See United States v. Salamanca, 990 F.2d 629, 634-35 (D.C.
Cir. (1993).

Gilliam's neighbor saw Gilliam and two other men drive to
Gilliam's house in a gray Plymouth K car the morning of the
robbery. Shortly thereafter, the police saw Gross and Thom-
as get into the same car upon leaving Gilliam's house. Given
the closeness in time and use of the same car, the police could
reasonably believe that Gross and Thomas were the same
men who arrived at the house with Gilliam. One man wore a
tan trench coat similar to that worn by one of the masked
robbers. Both men carried bulky, heavy plastic bags. A
police officer thought that one of the plastic bags he saw
through the open car door contained bulky objects consistent
with the shape of money and food stamps. Viewed in its
totality, the evidence provided probable cause for the police to
search the plastic bag and to seize the bundled money and
food stamps found in the bag. See California v. Acevedo, 500
U.S. 565, 573-74 (1991); cf. United States v. Ross, 456 U.S.
798, 824 (1982); Caroline, 791 F.2d at 201-02.

Because the police had probable cause to search the plastic
bag, we do not reach the issue of whether there was also

probable cause to search the entire car (which was searched
later pursuant to a warrant), see Ross, 456 U.S. at 799-800;
whether the police could have seized the plastic bag and its
contents in a valid search incident to arrest, see New York v.
Belton, 453 U.S. 454 (1981); cf. United States v. Fafowora,
865 F.2d 360 (D.C. Cir. 1989); whether the contents of the
bag would have been inevitably discovered by lawful means;
see Nix v. Williams, 467 U.S. 431, 447-48 (1984); or whether
the police, pursuant to a Terry stop, could have searched the
bag in a protective sweep for weapons. See Terry v. Ohio,
392 U.S. 1 (1968); Michigan v. Long, 463 U.S. 1032 (1983).
Appellants' contention that the evidence subsequently found
in Gilliam's home and car, and the statements made by Gross
after his arrest, should also have been suppressed as the fruit
of an illegal search fails given the lawful search of the bag in
the car. Hence, the district court did not err in denying
appellants' motions to suppress.

III.

Appellants also contend that the district court abused its
discretion in denying their motions for severance of defen-
dants under Fed. R. Crim. P. 14. United States v. Brown, 16
F.3d 423, 427 (D.C. Cir. 1994); United States v. Manner, 887
F.2d 317, 324 (D.C. Cir. 1989). They maintain that because
there were three defendants and only two masked robbers,
each defendant's claim of innocence was tantamount to pre-
senting the prosecutor's case against the other two defen-
dants; indeed, the government's silence on their respective
roles in the commission of the robbery heightened their need
to incriminate each other. In addition, they contend that a
severance was required because the joint trial compromised
their right to exclude inadmissible evidence that was seriously
prejudicial: Gilliam's letter to Thomas and Gross' testimony
about Gilliam's alleged drug activity.

In appellants' view, they presented mutually antagonistic
defenses that necessitated a severance of their trials under
Rule 14. Gilliam did not testify, but Gross and Thomas did,

each attempting to prove that he was not one of the two
masked robbers. Thomas testified that he went to Gilliam's
house to borrow money for car repairs and just happened to
be there when the other two men arrived in Gilliam's gray
Reliant K car. Over his codefendants' objections, Thomas
introduced a letter from Gilliam stating that Thomas had
nothing to do with the robbery, and that Gilliam would
somehow inform the trial judge of this fact. Gross, in turn,
presented a different innocent presence defense, testifying
that he had no knowledge of the robbery and, over Gilliam's
objection, that he had gone to Gilliam's house for drugs and
met Thomas there. In closing argument, Gilliam's counsel
told the jury that it could infer from the evidence that Gross
and Thomas were the two masked robbers.

Mutually antagonistic defenses exist where the acceptance
of one defendant's defense is irreconcilable with the defense
presented by a codefendant. See Zafiro v. United States, 506
U.S. 534, 537-38 (1993). Under Rule 14, concerns about
prejudice stem from the danger that the jury will unjustifi-
ably infer that this conflict alone demonstrates that both
defendants are guilty, United States v. Haldeman, 559 F.2d
31, 71-72 (D.C. Cir. 1976); Manner, 887 F.2d at 326; see
Zafiro, 506 U.S. at 537-38, or alternatively, that the jury will
decide that at least one of the defendants is guilty regardless
of whether the government has met its burden of proof.
Zafiro, 506 U.S. at 542 (Stevens, J. concurring). To demon-
strate that the district court abused its discretion in denying
a severance, however, the appellant must show more than
"the presence of some hostility" among codefendants, and
"more than the fact that co-defendants whose strategies were
generally antagonistic were tried together." Brown, 16 F.3d
at 433 (internal quotations omitted). Even where codefend-
ants implicate each other, their defenses are not necessarily
mutually antagonistic, and even when they are mutually
antagonistic, they are not necessarily improperly prejudicial.
Thus, in Brown, 16 F.3d at 433, despite the fact that the first
defendant's denial of any involvement in the charged offense
was contradicted by a second defendant's defense that the
drugs and gun seized from her apartment belonged to the

first defendant, the court noted that the jury could have
believed either defense or could have believed that neither
defense was entirely accurate. See id. Observing that
Brown's real concern was that his codefendant's testimony
was damaging to his defense, the court noted that a defen-
dant is not ordinarily entitled to exclude testimony of a
former codefendant if the district court severed their trials.
Id.

In the instant case, the government's evidence showed that
only two men were at the bank. Gross and Thomas each
claimed he was not at the bank, but neither pointed the finger
at one or more of the other defendants. Gilliam denied any
involvement. In theory, the jury could have accepted either
Gross' or Thomas' defense, or all three defenses, concluding
in the latter circumstance that the government had charged
the wrong men. By thus putting the government to its proof,
there was no logical inconsistency in their defenses for Rule
14 purposes. Compare State v. Kinkade, 680 P.2d 801, 804
(Ariz. 1984) (describing codefendants' defenses as "completely
antagonistic" where only one of two codefendants could have
committed the charged murder, each of the two codefendants
admits being present at the crime scene, each charges the
other with having committed the crime, and there is no
possibility that a third party was present).

Even if appellants' defenses were mutually antagonistic,
the Supreme Court concluded in Zafiro that a severance
under Rule 14 should be granted "only if there is a serious
risk that a joint trial would compromise a specific trial right
of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence." 506 U.S. at 539;
see also United States v. Moore, 104 F.3d 377, 383-84 (D.C.
Cir. 1997); United States v. Applewhite, 72 F.3d 140, 144
(D.C. Cir. 1995). As examples of serious risk, the Court
listed the inadmissibility of evidence if tried separately, mark-
edly different degrees of culpability, or if essentially exculpa-
tory evidence available to a defendant tried alone were inad-
missible in a joint trial. Zafiro, 506 U.S. at 539. Moreover,
the Court added that even when the risk of prejudice is high,

less drastic measures, such as limiting instructions, will often
suffice as a remedy. Id.

Appellants cannot show that the potential prejudice they
faced from a joint trial rises to the Zafiro standards. Each
defendant's culpability was separately demonstrated. The
evidence of the location of Gilliam's wallet, his home as the
hiding place for the robbery proceeds, and the use of his car
to carry away the proceeds, all combine to demonstrate his
direct involvement in the robbery and its immediate after-
math. Gross' involvement in the robbery was independently
clear from his fingerprint on the duct tape used to tie up the
two bank employees. Thomas admitted he knew that the
money was from a bank, and he was seen leaving Gilliam's
home with a bulky bag and driving away with Gross in
Gilliam's car later the same morning of the robbery. The
district court instructed the jury to consider the relevant
evidence against each defendant separately "as if he were
being tried alone," and further, that the conduct or evidence
against any one of the defendants should not influence the
jury's deliberation on the others' guilt or innocence. The jury
is presumed to follow the court's instructions, see, e.g., Rich-
ardson v. Marsh, 481 U.S. 200, 211 (1987), and the verdicts
indicate that the jury was able to distinguish between the
defendants, as it found Thomas not guilty of the robbery and
s 924(c) firearms charge.

Still, appellants contend that they were seriously preju-
diced by the compromise of their right to exclude inadmissi-
ble evidence: Gilliam's letter to Thomas was admitted over
their objections as a statement by Gilliam against his interest.
See Fed. R. Evid. 804(b)(3). However, only Gross moved for
severance based upon the resulting prejudice; Gilliam object-
ed on evidentiary grounds alone, and he can hardly show that
the denial of a severance was plain error. See United States
v. Olano, 507 U.S. 725, 734 (1993). Even if the district court
erred in admitting the letter as a statement against interest,
the government could have introduced it against Gilliam in a
separate trial as an admission by a party opponent. See Fed.
R. Evid. 801(d)(2); United States v. Bolden, 514 F.2d 1301,
1311 (D.C. Cir. 1975). In any event, the jury had "indepen-

dent and substantial" evidence to convict him regardless of
the admission of his statements in the letter. Halliman, 923
F.2d at 884 (quotation marks and citation omitted). His
wallet was found at the robbery scene and the proceeds of the
robbery were found in his home. Moreover, the letter, as
read to the jury, tended to exculpate Thomas rather than
inculpate Gilliam.

As for Gross, the admission of the statements in Gilliam's
letter to Thomas had no prejudicial effect as would require a
severance, even though Gross maintains that while the re-
dacted letter did not refer to him, he was implicated through
its exoneration of Thomas. This is another way of making a
claim of mutually antagonistic defenses and is unpersuasive.
Furthermore, whether the letter would have been admissible
in a separate trial against Gross, there was "independent and
substantial" evidence to convict him: his fingerprint was on
the duct tape found inside the bank. Id. Insofar as Gross
also contends that he was denied his Sixth Amendment right
to cross-examine Gilliam about his statements to Thomas, his
claim fails because Gilliam's statements did not expressly
implicate him. See Gray v. Maryland, 118 S.Ct. 1151, 1154-
57 (1998); Richardson, 481 U.S. at 211; Applewhite, 72 F.3d
at 145.

Nor can Gilliam show that the district court's denial of a
severance was an abuse of discretion by reason of the admis-
sion of Gross' testimony about Gilliam's involvement with
drugs. Although the government has failed to point to a
permissible purpose under Rule 404(b) for admitting the
evidence in a separate trial of Gilliam, the evidence of his
guilt was overwhelming. Moreover, the prejudice was miti-
gated to some extent by the district court's cautionary in-
structions to the jury when the testimony was admitted, and
by the final instructions to the jury before it retired to
deliberate that any evidence of drugs inside Gilliam's home
was to be considered only as it related to Gross. Thus, his
claim of prejudice fails. See Halliman, 923 F.2d at 884.

Accordingly, the district court did not abuse its discretion
in denying appellants' motions for severance under Rule 14.

 IV.

Appellants challenge their firearms convictions under 18
U.S.C. ss 924(c) and 922(g). Gilliam and Gross were both
charged with the use or carrying of a Beretta 9mm handgun
and an Intratech .22 caliber Scorpion Machine (semiautomat-
ic) Pistol, during a crime of violence. Under s 924(c)(1), the
use or carrying of a semiautomatic firearm increases the
statutory penalty from a five-year to a ten-year mandatory
sentence. Appellants maintain, in effect, that because there
was no direct evidence that both of the masked men had a
gun, much less that one of the guns was a semiautomatic
weapon, the government failed to meet its burden to prove
that appellants used or carried two guns, either as a principal
or as an aider and abettor. Of course, the government may
meet its burden of proof by circumstantial as well as direct
evidence. See, e.g., United States v. Treadwell, 760 F.2d 327,
333 (D.C. Cir. 1985) (citing Holland v. United States, 348 U.S.
121, 140 (1954)). If "any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt" based on the evidence before the trier of fact, the
district court properly denies a motion for judgment of ac-
quittal notwithstanding the verdict. Jackson v. Virginia, 443
U.S. 307, 319 (1979); see also United States v. Harrington,
108 F.3d 1460, 1464 (D.C. Cir. 1997). Viewing the evidence,
direct and circumstantial, in the light most favorable to the
government, as we must, see United States v. Graham, 83
F.3d 1466, 1470 (D.C. Cir. 1996), the jury could reasonably
find that in robbing the bank appellants used and carried two
guns, one of which was a semiautomatic pistol.

Appellants do not contest that a defendant can be convicted
under s 924(c) on an aiding and abetting theory for his co-
defendant's use of a gun. If there is evidence from which the
factfinder may infer that each defendant was aware that the
other was armed, then one defendant's knowledge of the gun
may be imputed to the other defendant. See, e.g., Harring-
ton, 108 F.3d at 1471; United States v. Price, 76 F.3d 526,
529 (3d Cir. 1996). But, here, they maintain, the evidentiary
deficiency arises from the fact that there was no evidence

that anyone saw a second gun during the robbery. However,
the bank manager testified that while he was detained by one
of the masked men he saw about two inches of a gun barrel,
akin to a handgun, protrude from the hands of the other
masked man. The other bank employee saw the same
masked man point a black handgun at her, threatening "don't
move or I'll shoot you." While neither bank employee actual-
ly saw a second gun, there was circumstantial evidence that
the two masked men had a second gun. The bank manager
testified that one of the men pressed a hard object against his
side and threatened to blow his brains out; the robber
warned, "you know what this is. Don't act crazy," and when
they reached the vault, the same robber told the manager not
to miss the combination, or he would "blow [his] ... brains
out." Combined with the evidence that the police had recov-
ered two guns in Gilliam's home inside of the same bag as the
ski masks and stolen cash, a reasonable jury could find that,
given the fact that two masked men were attempting to rob a
bank, the object felt by the manager was a gun: it was hard
like a gun and a gun was the type of tool needed to carry out
the threat.

The absence of evidence of a direct sighting of the second
gun by either bank employee is, therefore, immaterial. See
Treadwell, 760 F.2d at 333. In none of the cases on which
appellants rely did the police recover the alleged gun. See
United States v. Jones, 16 F.3d 487, 490 (2d Cir. 1994);
United States v. Patino, 962 F.2d 263, 265 (2d Cir. 1992);
Parker v. United States, 801 F.2d 1382, 1383 (D.C. Cir. 1986).
Because the object was the robbery of a federal credit union
and one of the masked men was armed, the jury could
reasonably infer from the threatening statements and the
discovery of both guns that the second masked man was also
armed, with a semiautomatic. So viewed, Gilliam and Gross
were responsible for two weapons; each carried and used a
gun during the robbery, and each aided and abetted his
partner's use.7 See, e.g., Harrington, 108 F.3d at 1371;
Price, 76 F.3d at 529.

__________
7 Contrary to appellants' assertion, the government did not
take the position on appeal that evidence of the use or carrying of

Appellants' contention, raised for the first time on appeal,
that the government should be required to prove their specif-
ic knowledge where a semiautomatic or automatic weapon is
involved is barred by our decision in United States v. Harris,
959 F.2d 246 (D.C. Cir. 1992). Foreshadowing the Supreme
Court's reasoning in Staples v. United States, 511 U.S. 600
(1994), this court held in Harris that the National Firearms
Act, 26 U.S.C. s 5861(d), which makes possession of an
unregistered automatic weapon unlawful, implicitly requires
that a defendant have specific knowledge that a weapon is
automatic because an otherwise law abiding citizen "who has
come into possession of an automatic weapon ... quite possi-
bly has no reason to be aware that the weapon is a 'firearm'
within the meaning of the statute." Harris, 959 F.2d at 259.8
But the court expressly declined to extend such reasoning to
s 924(c) because the government already had the burden of
proving under s 924(c) that a defendant knowingly engaged
in criminal behavior with a firearm. See id. Thus there was
no need for an additional element of knowledge of the specific
type of gun because regardless of the kind of gun, the
defendant's mental state was just as culpable. See id.

Put otherwise, and contrary to appellants' position, Harris
applied strict liability for the type of gun used by a defendant
in committing a s 924(c) offense. See id. at 258. Conse-
quently, appellants' reliance on Staples, in which the Supreme
Court reversed a conviction under 18 U.S.C. s 5861(d) in the
absence of proof of knowledge, is to no avail. Other circuits
have also held that Staples does not extend a special mens
rea requirement to s 924(c), on the rationale that because the
semiautomatic provision of s 924(c) is a sentencing enhance-

__________
one of the two firearms was sufficient to support the s 924(c)
convictions.

8 In Staples, 511 U.S. at 603, the Supreme Court reversed the
conviction of a defendant for failing to register a semiautomatic
weapon that had been modified to be capable of fully automatic fire
because the jury had not been allowed to consider the defendant's
claim that he did not know that the weapon had such automatic
capability.

ment and not an element of the offense, a separate mens rea
need not be proven. See United States v. Shea, 150 F.3d 44,
51-52 (1st Cir.), cert. denied, 119 S.Ct. 568 (1998); United
States v. Brantley, 68 F.3d 1283, 1289-90 (11th Cir. 1995).
Accordingly, by introducing evidence from which a reasonable
jury could find that appellants used and carried two guns
during the robbery, and that the search of Gilliam's home
revealed one of the guns was a semiautomatic, the govern-
ment met its burden of proof under s 924(c).

Gross' further contention that because the evidence indi-
cates he carried the handgun, he cannot be convicted for
aiding and abetting the use of the semiautomatic is also
without merit. There is no authority to support Gross'
assertion that a defendant's carrying of a gun in a joint
robbery precludes him from being liable for aiding and abet-
ting the use of his co-defendant's firearm. United States v.
Anderson, 59 F.3d 1323 (D.C. Cir. 1995) (in banc), on which
Gross relies, simply states that s 924(c) does not sustain
multiple gun convictions for a single underlying criminal act.
There is no Anderson problem here because the government
charged both guns in the same s 924(c) count, and upon
conviction, the district court sentenced Gross for only the
semiautomatic weapon.

One of the challenges to a s 922(g) conviction is not so
readily disposed of, however. Under s 922(g) it is unlawful
for anyone who has been convicted of a crime punishable by a
sentence over a year to possess a firearm that has traveled in
interstate commerce. See, e.g., United States v. Jones, 67
F.3d 320, 324 (D.C. Cir. 1995). Gross' contention that the
government failed to offer any evidence of his prior convic-
tions flounders on his admission on the witness stand to a
prior conviction for attempted distribution of heroin and his
counsel's statement, without dissent by Gross, to the district
court that Gross conceded that his prior conviction qualified
as a predicate conviction for the felon-in-possession count.
Gilliam, on the other hand, made no such concession or
admission, and there is no evidence that he waived his right

to put the government to its proof. Cf. Olano, 507 U.S. at
733; Johnson v. Zerbst, 304 U.S. 458, 463 (1938).

It is undisputed that under s 922(g), the government must
prove that the defendant has a prior felony conviction. Here,
the prosecutor informed the district court that he had a
certified copy of a prior conviction of Gilliam, but never
submitted the document to the court for introduction into
evidence. Nor at any time did the prosecutor represent to
the district court that Gilliam had expressly agreed that proof
of his prior convictions was unnecessary. On appeal the
government maintains that because Gilliam did not challenge
the prosecutor's representation that he had a certified copy of
a 1986 robbery conviction and that Gilliam had been convicted
of the three prior felony offenses charged in count three of
the indictment, he "essentially stipulat[ed] to this prior felony
element of the s 922(g) offense." Consequently, in the gov-
ernment's view, the failure formally to introduce the certifi-
cate was not fatal.

Before hearing any evidence the district court engaged
Gilliam in a colloquy about his criminal record. The prosecu-
tor proffered that Gilliam had prior convictions for armed
robbery, robbery, kidnaping, obstruction of justice, assault
with a deadly weapon, and carrying a deadly weapon. The
court inquired, "I assume you're not challenging these convic-
tions. You're not saying that these are not your prior
convictions, right?" Gilliam answered, "[n]o, I'm not....
Not at this time anyway." The prosecutor did not offer into
evidence at the bench trial on the felon-in-possession count
any documentary or other evidence to prove that Gilliam had
the requisite prior convictions. Recalling perhaps that the
district court had engaged Gilliam in a pretrial colloquy about
his criminal record, the prosecutor apparently failed to recall
that in responding to the district court's inquiry Gilliam gave
a qualified denial, leaving open his option to challenge his
prior convictions at a subsequent time. Thus, in the absence
of waiver or an admission by Gilliam, there was no evidence
before the court to prove Gilliam's prior record.

Although the government relies on Gilliam's silence in
failing to challenge his prior convictions, the burden remained
on the government to offer into evidence proof of every
element of the charged offense. While it could have done so
by a stipulation with the defendant or by a waiver by the
defendant of his right to put the government to its proof,
neither occurred here. Cf. Old Chief v. United States, 117
S.Ct. 644, 653 (1997); Olano, 507 U.S. at 733 (quoting John-
son v. Zerbst, 304 U.S. at 463); Jackson v. Denno, 378 U.S.
368 (1964). The government's reliance on United States v.
Hardin, 139 F.3d 813 (11th Cir.), cert. denied, 119 S.Ct. 225
(1998), and United States v. Branch, 46 F.3d 440 (5th Cir.
1995), in which the defendants had entered into stipulations
with the government on an element of the crimes charged, is
misplaced. Indeed, even if there had been a stipulation, the
government may well still have needed to introduce the
stipulation into evidence, for as the Ninth Circuit has ob-
served, whether there is a stipulation between the defendant
and the government, if it is not offered in evidence there is
"no fact in evidence that the [trier of fact] could take as
proved." United States v. James, 987 F.2d 648, 651 (9th Cir.
1993); cf. United States v. Muse, 83 F.3d 672, 678-81 (4th
Cir. 1996). Because there was neither a stipulation nor other
waiver by Gilliam, nor proof by introduction into evidence of
the certified copy of his prior conviction, the government
failed to present evidence on an element of the s 922(g)
offense. See Estelle v. McGuire, 502 U.S. 62, 69 (1991).

By contrast, Gross' challenge to his conviction for carjack-
ing, on the ground that because the bank manager was away
from his car at the time he was assaulted by the robbers,
there was insufficient evidence to convict him of carjacking
under D.C. Code s 22-2903 (1981), fails. A carjacking occurs
so long as the victim is in immediate actual possession of the
vehicle. See Pixley v. United States, 692 A.2d 438 (D.C.
1997). "Immediate possession," an element borrowed from
the crime of robbery, see Pixley, 692 A.2d at 440, is retained
if the car is within such range that the victim could, if not
deterred by violence or fear, retain actual physical control

over it. See, e.g., Spencer v. United States, 116 F.2d 801, 802
(D.C. Cir. 1940); Rouse v. United States, 402 A.2d 1218, 1220
(D.C. 1979). Although the bank manager had stepped out of
his car to unlock the parking lot gate, he left the car running
with the driver's door open. The jury could reasonably find
that the bank manager intended to get back into his car to
park it in the credit union lot once he had opened the gate,
but the robbers prevented him from doing so, and thus
deprived the manager of immediate possession of his car. As
for Gross' contention that he never intended to steal the car,
the statute does not require that the government prove
specific intent to steal. See Pixley, 692 A.2d at 439-40; see
also Allen v. United States, 697 A.2d 1, 2 (D.C. 1997).

Thus, the district court erred only in denying Gilliam's
motion for judgment notwithstanding the verdict on the
s 922(g) charge.

V.

Finally, appellants attack their sentences. Insofar as
Gross contends that the district court erred in sentencing him
to a consecutive ten-year term for the use or carrying of a
semiautomatic weapon in violation of s 924(c)(1), this is an-
other way of claiming that there was insufficient evidence to
convict him for the use or carrying of the semiautomatic
pistol, and hence his contention is without merit. Gilliam, on
the other hand, contends that the district court erred in
imposing two life sentences under the "three strikes" statute,
18 U.S.C. s 3559(c),9 because the government failed to prove

__________
9 18 U.S.C. s 3559(c) provides in relevant part:

(1) ... a person who is convicted in a court of the United
States of a serious violent felony shall be sentenced to life
imprisonment if--

(A) the person has been convicted (and those convictions have
become final) on separate prior occasions in a court of the
United States or of a State of--

(i) two or more serious violent felonies.

that he had at least two prior predicate convictions for serious
violent felonies.

Gilliam first maintains that in view of the severity of the
penalty under the statute, due process requires the district
court to hold an evidentiary hearing before imposing a man-
datory life sentence. The three strikes statute incorporates a
notice requirement from the Controlled Substances Act, 21
U.S.C. s 851(a), requiring the government to give the defen-
dant formal notice in an information of the defendant's predi-
cate convictions on which the government intends to rely in
seeking the imposition of life imprisonment. See 18 U.S.C.
s 3559(c)(4). The government gave Gilliam such notice.
However, other provisions of the Controlled Substances Act,
namely ss 851(b) and (c), require the district court to ask the
defendant to admit to or deny his prior convictions, and upon
a denial, the court must conduct an evidentiary hearing in
which the government must prove the convictions beyond a
reasonable doubt. 21 U.S.C. s 851(c). Gilliam contends that
the statute should be read to incorporate some of the addi-
tional due process requirements of ss 851(b) and (c).10

There is, however, no authority to support Gilliam's conten-
tion, and the Tenth Circuit has rejected it, concluding that
"[t]he fact that the defendant does not concede the existence
or seriousness of former convictions does not automatically
require a separate section 3559 hearing." United States v.
Oberle, 136 F.3d 1414, 1424 (10th Cir.), cert. denied 119
S. Ct. 197 (1998). "Rather, it is only when a defendant

__________
10 Gilliam stated in a footnote of his brief that although due
process "arguably" "may well require" a higher standard of proof
than a preponderance of the evidence as well as an evidentiary
hearing where the sentence enhancement under three strikes im-
poses a punishment greater than the maximum sentence authorized
for the offense of conviction, he concluded that the court "does not
have to address this issue" "because the government failed to prove
Mr. Gilliam's prior convictions by even a preponderance of the
evidence." He never directly argued that meeting the preponder-
ance standard is insufficient, and the court will not construe the
briefs to raise an argument that is hinted at but never stated. Cf.
United States v. Whren, 111 F.3d 956, 958 (D.C. Cir. 1997).

tenders evidence to deny the seriousness of the former con-
victions or to deny that the prior convictions pertained to him
or her that the district court must conduct a hearing." Id.
Even assuming ss 851(b) and (c) were applicable, Gilliam
made neither a tender nor a denial that would trigger an
inquiry. Before sentencing, Gilliam and his counsel received
the presentence report setting forth Gilliam's prior convic-
tions, and acknowledged that the report did not contain any
material factual inaccuracies.11 In a memorandum in aid of
sentencing, counsel asked only for consideration of Gilliam's
mental condition. At sentencing, Gilliam's counsel stated,
"[a]s the court [is] aware, there's very little I can say in this
case, given the papers filed by the government and given Mr.
Gilliam's convictions." Under the circumstances, even if Gil-
liam's statements did not constitute a waiver, his actions
amounted to forfeiture and we find no plain error. See
Olano, 507 U.S. at 732-33. Because "[a]ll that [Gilliam] did
was to put the government to its proof," Oberle, 136 F.3d at
1424, the district court could properly rely on the factual
statements in the presentence report.12 See Fed. R. Crim. P.

__________
11 Among the convictions noted in the presentence report was a
1971 kidnaping conviction and a 1986 armed robbery conviction, for
which Gilliam received 6-18 years. Under subsection (2)(F)(i) of
the three strikes statute, kidnaping qualifies as an enumerated
serious violent felony. Under subsection (2)(F)(ii), armed robbery
qualifies as a predicate offense "that by its nature, involves a
substantial risk that physical force against the person of another
may be used in the course of committing the offense," and is
punishable by a maximum term of imprisonment of 10 years or
more.

12 Although the presentence report can resolve the three-
strikes sentencing issue, it cannot provide the necessary element of
s 922(g) because it was neither acknowledged nor prepared prior to
Gilliam's conviction for the offense. As to Gilliam's counsel's state-
ment during oral argument in this court that there may be an issue
of identification as to one of Gilliam's prior convictions, in the
absence of any relevant record on appeal, such a claim must be
presented initially to the district court. See, e.g., Oliver v. United
States, 335 F.2d 724, 726 n.2 (D.C. Cir. 1964).

32(b)(6)(D); Washington, 115 F.3d at 1010; United States v.
Booze, 108 F.3d 378, 381-82 (D.C. Cir. 1997); cf. United
States v. Hill, 131 F.3d 1056, 1065 (D.C. Cir. 1997). Hence,
the district court did not err in accepting the presentence
report as meeting the government's burden to prove that
Gilliam had two predicate convictions under s 3559(c). Cf.
Oberle, 136 F.3d at 1424.

Accordingly, because the government failed to introduce
evidence on an element of the offense, we reverse Gilliam's
conviction under 18 U.S.C. s 922(g), but in view of evidence
presented in connection with sentencing, we affirm his life
sentences; otherwise we affirm the judgments of conviction.