UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-1487
UNITED STATES,
Appellee,
v.
CHARLES POWELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Cyr, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Elizabeth A. Lunt, with whom Zalkind, Rodriguez, Lunt & Duncan
were on brief for appellant.
Ralph F. Boyd, Jr., Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, and Kevin J. Cloherty,
Assistant United States Attorney, were on brief for appellee.
March 29, 1995
BOWNES, Senior Circuit Judge. Following a five-day
BOWNES, Senior Circuit Judge.
jury trial, defendant-appellant Charles Powell was convicted
of being a felon in possession of a firearm. 18 U.S.C.
922(g)(1). He was then sentenced to the statutory maximum of
120 months' imprisonment. Powell challenges his conviction
and sentence on a variety of grounds. After carefully
reading the record and considering Powell's arguments, we
affirm.
I.
I.
A. General Background
A. General Background
At shortly after 2:00 p.m. on October 7, 1992,
Powell was standing outside of his truck. He was holding
food and conversing with Arvetta Boykins -- his girlfriend --
and Boykins' mother as the two women sat in the truck. The
truck was parked on Boston's Humboldt Avenue near its
intersection with Ruthven Street and across from Humboldt
Liquors. As this conversation was taking place, a grayish-
silver Subaru drove slowly down Ruthven and turned onto
Humboldt. There were four young men in the Subaru, each of
whom was wearing a hooded sweatshirt with the hood pulled up.
As the Subaru proceeded down Humboldt, the men in
the car yelled something to a couple of young men -- Chris
Cheney and Ernest Rhodes -- who were standing out on
Humboldt. Either Rhodes or Cheney yelled back. After this
exchange, the driver of the Subaru put the car in reverse and
-2-
2
accelerated quickly, making a loud screeching sound.
Observing this, Powell handed his food to his girlfriend's
mother and told the two women to "get out of here." Knowing
that trouble was brewing, they quickly complied by driving
off. Powell then ran up Ruthven.
By about 2:30 p.m., Powell had returned to Humboldt
Avenue and was talking with Cheney and Rhodes in front of
Humboldt Liquors. Around this same time, Stanley Owens came
around the corner of Ruthven and Humboldt on a mountain bike.
He had his hand in his jacket pocket and was leaning to his
left. At least one other youth also came on the scene
simultaneously. At some point, gunfire erupted. The
gunfire, which came from at least three guns, was continuous
and lasted six or more seconds. Three persons, including
Powell, were wounded in the shoot-out; Owens was killed.
Cheney and Rhodes escaped injury by taking cover inside of
Humboldt Liquors. Within an hour of the shooting, Powell was
arrested. At the time of his arrest, Powell was standing in
an alley not far from the intersection of Ruthven and
Humboldt, and was holding a .44 Charter Arms Bulldog handgun.
He also had a walking cane with him. It was subsequently
determined that a bullet from the .44 had killed Owens.
Powell does not dispute that he fired two shots with the .44
during the shoot-out.
B. The Necessity Defense
B. The Necessity Defense
-3-
3
At trial, the government argued that Powell shot
Owens with a gun he had brought to the crime scene. Powell
consistently denied this, asserting as an affirmative defense
that he took possession of the .44 only out of necessity in
the midst of the shoot-out. When he was in an ambulance
after the shooting, Powell told an arresting officer that the
youths in the gray Subaru had started shooting from the car,
that a light-skinned black male had alighted and continued
the shooting, that he (Powell) ran towards this shooter, and
that the shooter then lost control of the weapon, dropped it
to the ground, and jumped back into the Subaru, which sped
off. Powell stated that he picked up the gun and ran to the
alley in which he was arrested. He did not mention firing
the weapon at anyone.
To clarify how the shooter lost control of the
weapon, the officer asked Powell to repeat his story. At
this point, Powell told the officer that the light-skinned
male got out of the Subaru, began the shooting, and fled on
foot. He did not mention the shooter dropping or losing
control of his weapon. When the officer asked how the weapon
ended up on the ground, Powell did not answer.
At trial, Powell had a third account of what had
happened. Powell testified that he heard shots ring out as
he stood in front of Humboldt Liquors talking with Cheney and
Rhodes. While Cheney and Rhodes sought refuge inside the
-4-
4
store, Powell began running up the street towards the
intersection of Humboldt and Ruthven. Just then, a man who
was pulling a gun out of his pocket came running around the
corner. The man pointed the gun at him, but was unable to
fire it before Powell was upon him. The two scuffled, and
the gun fell to the ground. The man fled around the corner
and Powell picked up the gun. Powell began to run across
Ruthven and was shot in the leg. He turned around and fired
two shots at his assailant. He then ran up Humboldt to
Homestead Street, turned left on Homestead, and headed into
an alley, where he found a walking cane. He stayed in the
alley until he was arrested.
C. Other Guns
C. Other Guns
After the shooting, an arresting officer retrieved
a set of keys from Powell. The keys were to a two-bedroom
apartment at Fairlawn Estates in the Mattapan section of
Boston. The police obtained a search warrant for the
apartment, and executed the warrant the same night as the
shooting. The search turned up two additional weapons: a
fully-loaded black Taurus 9 mm. semi-automatic pistol with an
obliterated serial number; and a .38 caliber derringer loaded
with two rounds of ammunition. The Taurus was hidden in a
laundry basket located in the apartment's master bedroom.
The derringer was hidden on a closet shelf in the second
bedroom. Although Powell claimed to be nothing more
-5-
5
than a sporadic visitor to the Fairlawn Estates apartment,
the evidence, taken in a light most favorable to the
government, established that Powell and Boykins (Powell's
girlfriend) were living there at the time of the shooting.
Powell and Boykins had signed a rental application, lease,
lease addendum, and rules and regulations acknowledgment for
the apartment in August, 1992. Moreover, Boykins told the
grand jury that she and Powell (along with their two
children) were living in the apartment, and that she and
Powell shared the master bedroom. This testimony was
introduced at trial. Finally, the evidence showed that
Powell's name was on the mailbox for the apartment; that only
Powell and Boykins had keys to the apartment; that Powell had
personally visited the Fairlawn Estates apartment manager's
office on at least two occasions in the months prior to the
shooting; and that Powell had once telephoned the apartment
manager and made an oral request that repairs be made to the
apartment. Boykins testified that Powell's cousin and her
children also were staying at the apartment around the time
of the shooting. Powell testified that his cousin's husband
was staying there as well.
D. Proceedings Below
D. Proceedings Below
On December 18, 1992, the grand jury returned a
three-count indictment against Powell. Count I charged him
with being a felon unlawfully in possession of the .44 used
-6-
6
in the shooting. See 18 U.S.C. 922(g)(1). Count II charged
him with being a felon unlawfully in possession of the Taurus
pistol, the derringer, and the ammunition found in the
Fairlawn Estates apartment. See id. Count III charged him
with unlawfully possessing a firearm -- the Taurus -- with an
obliterated serial number. See 18 U.S.C. 922(k). Prior to
trial, the district court severed Counts II and III from the
trial of Count I. The court also granted Powell's motion in
limine requesting that the government not be allowed to refer
to the firearms and ammunition which were the subjects of
Counts II and III during its opening statement or case-in-
chief. The court did, however, reserve judgment as to
whether evidence relating to Counts II and III might become
admissible after the defense put on its case. The government
complied with the court's order and did not allude to this
evidence at any point during its case-in-chief.
The defense called Arvetta Boykins as a witness.
She testified, in response to a question by defense counsel,
that numerous random police searches of Powell in the months
preceding the shoot-out had failed to turn up a weapon on his
person or in his car. The government then asked the court to
revisit its ruling in limine. At this point, the court
allowed the government to cross-examine Boykins about whether
she or Powell had stored in the Fairlawn Estates apartment
the firearms described in Counts II and III of the
-7-
7
indictment. The court ruled that defense counsel had "opened
the door" to this inquiry by asking Boykins whether "she's
seen him with a weapon on occasion." Defense counsel, who
had asked only about police searches of Powell in the months
preceding the shoot-out, denied having asked such a question.
Boykins denied that the firearms were hers or Powell's.
After Boykins completed her testimony, Powell himself took
the stand and asserted, inter alia, that he had never had a
firearm on him in the summer of 1992.
Subsequently, the court permitted the government to
introduce the evidence underlying Counts II and III as part
of its rebuttal case. The court informed the jury that it
should not consider the firearms found in the Fairlawn
Estates apartment at all unless it first found that Powell
possessed them. The court also told the jury that, if it
found that Powell did possess these firearms, it should not
consider this evidence "to show that the defendant was the
kind of person who possessed firearms, but rather to show
that the defendant had an opportunity to obtain firearms,
that the defendant had knowledge of the availability of
firearms, that [his possession of the .44] was not a question
of mere necessity." See Fed. R. Evid. 404(b). The jury
convicted Powell of the crime alleged in Count I of the
indictment. The government thereafter dismissed the severed
Counts, II and III.
-8-
8
On March 29, 1994, the district court sentenced
Powell. The court first assigned him a base offense level of
20 pursuant to U.S.S.G. 2K2.1(a)(4) (1993). The court then
added the following nine offense-level increases: four
levels because the possession of the .44 took place in
connection with another felony offense, i.e., the
unjustifiable killing of Stanley Owens, see 2K2.1(b)(5);
one level because Powell's offense and relevant conduct
involved the possession of three firearms, see id. at
2K2.1(b)(1); two levels because one of the firearms had an
obliterated serial number, see id. at 2K2.1(b)(4); and two
levels because Powell obstructed justice by giving
"perjurious" testimony, see 3C1.1, comment. (n.3(b)).
These increases led to a final offense level of 29. Because
Powell had a criminal history category of V, his guideline
sentencing range was 140 to 175 months. In view of the ten-
year statutory maximum applicable to the offense of
conviction, see 18 U.S.C. 924(a)(2), the court sentenced
Powell to a 120-month term of imprisonment. In so doing, the
court rejected Powell's request for a downward departure from
the applicable sentencing range because Powell purported to
have committed the offense of conviction "in order to avoid a
perceived greater harm." See 5K2.11 (allowing downward
departures in some such situations).
II.
II.
-9-
9
Powell makes six arguments on appeal: (1) the
district court committed reversible error in admitting
evidence of the guns and ammunition found in the Fairlawn
Estates apartment; (2) the court committed reversible error
in permitting the government to impeach Powell with his prior
felony convictions; (3) the court erred in increasing
Powell's offense level by four on the grounds that Powell
possessed the .44 in connection with another felony offense;
(4) the court erred in increasing Powell's offense level by
three for "relevant conduct" that included the possession of
the guns found in the Fairlawn Estates apartment; (5) the
court erred in increasing Powell's offense level by two for
obstruction of justice; and (6) the court erred in declining
to depart downward. We address each argument in turn.
A. Admission of the Evidence from the Fairlawn Estates
A. Admission of the Evidence from the Fairlawn Estates
Apartment
Apartment
Powell's argument relating to the evidence from the
Fairlawn Estates apartment is tripartite. First, Powell
contends that the evidence is not relevant because the jury
could not reasonably have concluded that he possessed the
guns and ammunition discovered during the search. Second,
Powell asserts that the court erred in admitting the evidence
under Rule 404(b), even if the jury could have found that he
possessed the guns and ammunition. Third, Powell insists
that the court erred in deciding that the probative value of
this evidence was not "substantially outweighed by the danger
-10-
10
of unfair prejudice, confusion of the issues, or misleading
the jury," see Fed. R. Evid. 403, even if the evidence was
otherwise admissible. In light of the deference we give to
the challenged district court rulings, we discern no
reversible error.
Because the court conditioned the jury's
consideration of the evidence found in the Fairlawn Estates
apartment upon its initially finding possession of this
evidence by Powell, the first part of Powell's argument
implicates Fed. R. Evid. 104(b). Rule 104(b) provides:
"When the relevancy of evidence depends upon the fulfillment
of a condition of fact, the court shall admit it upon, or
subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition." Like
other admissibility rulings, the decision whether there is
sufficient evidence to support a finding of the fulfillment
of the condition is committed to the trial judge's "wide
discretion." See Veranda Beach Club Ltd. Partnership v.
Western Sur. Co., 936 F.2d 1364, 1371 (1st Cir. 1991).
The Supreme Court has set forth the process by
which the trial court should make this decision:
In determining whether the Government has
introduced sufficient evidence to meet
Rule 104(b), the trial court neither
weighs credibility nor makes a finding
that the Government has proved the
conditional fact by a preponderance of
the evidence. The court simply examines
all the evidence in the case and decides
-11-
11
whether the jury could reasonably find
the conditional fact . . . by a
preponderance of the evidence.
Huddleston v. United States, 485 U.S. 681, 690 (1988). We
therefore ask only whether the district court abused its
discretion in deciding that the jury could reasonably find,
by a preponderance of the evidence, that Powell possessed the
Taurus and derringer.
Possession of firearms can be either actual or
constructive. See, e.g., United States v. Rogers, 41 F.3d
25, 29 (1st Cir. 1994). In Rogers, we approved a jury
instruction which explained:
"A person who, although not in actual
possession, knowingly has both the power
and the intention at a given time to
exercise dominion or control over a
thing, or to exercise dominion or control
over the area in which that thing is
found, whether directly or through
another person, is then in constructive
possession of the thing."
Id. at 30 (emphases omitted). Thus, so long as one's
dominion/control over the area containing the thing at the
relevant time is established, "one can possess an object
while it is hidden at home in a bureau drawer, or while held
by an agent, or even while it is secured in a safe deposit
box at the bank and can be retrieved only when a bank
official opens the vault." United States v. Zavala
Maldonado, 23 F.3d 4, 7 (1st Cir.) (interpreting scope of a
-12-
12
drug possession statute), cert. denied, 115 S. Ct. 451
(1994).
In view of this broad understanding of "possession"
and the applicable preponderance standard, see Huddleston,
485 U.S. at 690, we have little difficulty concluding that
there was no abuse of discretion here. There was evidence
that Powell was sharing the master bedroom of the Fairlawn
Estates apartment at the time of the shooting; that he had
signed a variety of forms relating to the apartment; that he
had made a request for repairs to the apartment; that his
name was on the mailbox; that he was one of only two persons
with keys; and that the guns found there did not belong to
the apartment's other primary adult resident -- Boykins.
This evidence was more than adequate for the court to have
allowed the jury to consider whether Powell constructively
possessed the Taurus and derringer that were hidden within
the apartment. All the evidence tended to show Powell's
dominion over the apartment in which the guns were found, and
some of it -- Boykins' testimony that the guns were not hers
-- tended to show that the guns were Powell's (although we
acknowledge Boykins' further testimony that the guns were not
Powell's). We therefore reject Powell's relevancy argument.
The second and third parts of Powell's argument
against the admissibility of the evidence from the Fairlawn
Estates apartment do not fare any better. In admitting this
-13-
13
evidence, the district court employed the correct legal
analysis. The court first determined that the evidence had
"special relevance" to material issues raised by Powell's
case -- whether Powell possessed firearms in the months
preceding the shoot-out, whether Powell had an opportunity to
obtain firearms, whether Powell had knowledge of the
availability of firearms, and whether Powell's possession of
the .44 was a question of mere necessity -- and that it was
not being offered to show Powell's character or propensity
for criminal conduct. See, e.g., United States v. Tuesta-
Toro, 29 F.3d 771, 775 (1st Cir. 1994) (explaining Rule
404(b) inquiry), cert. denied, 115 S. Ct. 947 (1995).
The court then decided that the probative value of
the evidence was not substantially outweighed by the danger
of unfair prejudice. See id. (citing Rule 403). Because
legal error did not infect the trial court's analysis, we
afford the court's conclusions considerable deference. See
id.; see also United States v. Guyon, 27 F.3d 723, 729 (1st
Cir. 1994) (trial court's Rule 404(b) ruling reversible only
if the court abused its discretion); Veranda Beach Club, 936
F.2d at 1372 (trial court's construction of Rule 403's
probative value/unfair prejudice balance subject to
substantial deference on appeal); United States v. Wood, 982
F.2d 1, 4 (1st Cir. 1992) (decision whether to permit the
-14-
14
introduction of rebuttal evidence is within sound discretion
of the trial judge).
Again, we see no abuse of discretion. Although the
court may have oversimplified a bit in asserting that defense
counsel had asked Boykins whether she'd seen Powell with a
weapon on occasion, we think the court permissibly admitted
the challenged evidence to rebut the implication plainly
inhering in Boykins's testimony regarding the futile police
searches of Powell in the months preceding the shoot-out:
that Powell was not a possessor of firearms at the time of
the shooting. We think that the challenged evidence bore
special relevance to whether Powell only came into the
possession of the .44 as a matter of necessity, or whether he
was armed at the time the shooting began.
As we have just stated, Powell attempted to bolster
his necessity defense by introducing evidence -- his and
Boykins' testimony -- suggesting that he was not a possessor
of firearms at the time of the shoot-out. In other words,
Powell introduced evidence that he did not commit other
similar acts at the relevant point in time. While other-acts
evidence is not generally admissible "to prove the character
of a person in order to show action in conformity therewith,"
see Rule 404(b), it is admissible to rebut a defendant's
affirmative claim that s/he did not commit other similar acts
at the relevant point in time. See, e.g., Wood, 982 F.2d at
-15-
15
4 ("rebuttal evidence may be introduced to explain, repel,
contradict or disprove an adversary's proof") (citation
omitted); see also United States v. Zarnes, 33 F.3d 1454,
1470 (7th Cir. 1994) (evidence of marijuana plants growing in
defendant's vegetable garden admissible to rebut defendant's
mother's testimony that there were no marijuana plants in the
garden). The court therefore did not err in allowing the
jury to consider whether Powell's contemporaneous
constructive possession of the weapons in the Fairlawn
Estates apartment tended to show that his possession of the
.44 "was not a question of mere necessity."
Finally, the court's careful and well-crafted
limiting instruction -- which told the jury that the evidence
was not admissible to show that Powell was the kind of person
who possessed firearms -- largely dissipates any concern we
might have had about the danger of unfair prejudice to
Powell. Simply put, we see no reason why the jury could not
have followed the court's instruction in this case.
We therefore reject Powell's argument that the
admission of the evidence from the Fairlawn Estates apartment
ran afoul of Rules 404(b) and 403.
B. Impeachment of Powell with his Prior Felony Convictions
B. Impeachment of Powell with his Prior Felony Convictions
Powell next complains that the government's use of
the number of his prior felony convictions for impeachment
purposes (including its reference to the fact that, in one of
-16-
16
these cases, Powell was convicted under a different name in
another session of the district court) amounts to reversible
error. Citing United States v. Tavares, 21 F.3d 1 (1st Cir.
1994) (en banc), Powell claims that his willingness to
stipulate to the fact that he had been convicted of a felony
should have precluded the government from pursuing this line
of questioning. Powell misreads Tavares and overlooks Fed.
R. Evid. 609(a)(1).
A conviction under 922(g)(1) requires proof of
three elements: (1) that the defendant knowingly possessed a
firearm; (2) that the defendant had "been convicted in any
court of a crime punishable by imprisonment for a term
exceeding one year" at the time of the possession; and (3)
that the possession was in or affecting interstate or foreign
commerce. United States v. Tracy, 36 F.3d 187, 191 (1st Cir.
1994). In Tavares, we held that if a defendant wishes to
stipulate to the second of these three elements, "evidence
beyond the fact of the prior conviction is inadmissible
absent adequate trial court findings that its noncumulative
relevance is sufficiently compelling to survive the balancing
test of Fed. R. Evid. 403." 21 F.3d at 5. Thus, if there is
such a stipulation in a 922(g)(1) prosecution, the
government ordinarily may not introduce evidence of the
nature or number of prior convictions as part of its case-in-
chief. See id. at 5-6. We were careful to point out in
-17-
17
Tavares, however, that "in some cases evidence concerning the
nature of the prior conviction will be admissible for
impeachment or other reasons, despite its lack of probative
value on the prior element of the crime." Id. at 6.
Here, the government did not introduce evidence of
the number of Powell's prior felony convictions in order to
prove an element of its case; it introduced this evidence to
impeach Powell after he took the stand in his own defense.
We recently have made clear what we implied in Tavares: that
Tavares does not control in the impeachment context. See
Tracy, 36 F.3d at 191-92. Rather, the admissibility of the
impeachment evidence must be evaluated under Rule 609(a)(1).
This Rule provides:
General Rule. For the purpose of
General Rule.
attacking the credibility of a witness,
. . . evidence that a witness other than
an accused has been convicted of a crime
shall be admitted, subject to Rule 403,
if the crime was punishable by death or
imprisonment in excess of one year under
the law under which the witness was
convicted, and evidence that an accused
has been convicted of such a crime shall
be admitted if the court determines that
the probative value of admitting this
evidence outweighs its prejudicial effect
to the accused.
The upshot is that the evidence at issue was
properly admitted absent a showing that the trial court
abused its discretion in determining that its probative value
outweighed its prejudicial effect to Powell. See Tracy, 36
F.3d at 193 ("We review a district court's probative
-18-
18
value/prejudicial effect decision under Fed. R. Evid.
609(a)(1) for abuse of discretion."). Powell has not argued
that there was an abuse of discretion here; he has asserted
only that Tavares is controlling. Our own independent review
of the record reveals no abuse of discretion by the district
court. Indeed, allowing the government only to inquire into
the number, and not the nature, of Powell's prior felony
convictions strikes us as an eminently fair way to balance
the government's interest in impeaching Powell with Powell's
interest in avoiding the "unique risk of prejudice" present
whenever a testifying defendant is impeached with evidence of
his/her prior convictions: "the danger that convictions that
would be excluded under Fed. R. Evid. 404 will be misused by
a jury as propensity evidence despite their introduction
solely for impeachment purposes." Fed. R. Evid. 609
advisory committee's note, 1990 amendment; see also Tracy, 36
F.3d at 192.
We therefore reject Powell's claim of reversible
error in the introduction of this evidence.
C. Four-Level Increase for Possession in Connection with
C. Four-Level Increase for Possession in Connection with
Another Felony Offense
Another Felony Offense
The district court found at sentencing that
Powell's possession of the .44 was committed in connection
with another felony offense -- the unjustified killing of
Stanley Owens. The court explained its finding as follows:
-19-
19
I find, first, that the defendant
was engaged in activity which involved
him in an unjustified homicide. I do not
credit the defendant's testimony --
indeed, I find it to have been perjurious
-- as to the manner in which he found
himself in possession of the firearm
here. Accordingly, I find that the
defendant was in possession of the
firearm in connection with another felony
offense, an unjustifiable homicide under
state law. I will not get into the
particulars of how that may have been
charged under state law, what degree of
murder or manslaughter, simply that there
was no defense of self-defense. There
was no defense of necessity. There was
no defense for the defense of other
persons, but rather that the defendant
chose to place himself in the middle of a
shootout in which he chose not to
withdraw, but to engage.
The court therefore increased Powell's offense level by four.
See 2K2.1(b)(5). Powell takes issue with the court's
finding, arguing that there was no evidence to support it.
We do not agree with Powell's argument.
The standard by which we review a district court's
application of a sentencing guideline depends upon the nature
of the challenge before us. If a party claims error in the
court's interpretation of a guideline's meaning or scope, our
review is plenary. E.g., United States v. Thompson, 32 F.3d
1, 4 (1st Cir. 1994). If a party assigns error to a factual
finding made at sentencing, we review the finding for clear
error. See id. at 4-5. In so doing, we ask only whether the
court clearly erred in finding that the government proved the
-20-
20
disputed fact by a preponderance of the evidence. See United
States v. Mocciola, 891 F.2d 13, 17 (1st Cir. 1989).
It is important to note that Powell does not
challenge the trial court's apparent legal conclusion that
the killing of Stanley Owens was necessarily unjustified if,
as the court found, Powell placed himself into the middle of
the shoot-out instead of withdrawing. Cf. Commonwealth v.
Kendrick, 218 N.E.2d 408, 414 (Mass. 1966) ("The right of
self-defence does not accrue to a person until he has availed
all proper means to avoid physical combat."). In his brief,
Powell questions only the factual finding itself (along with
the statement that "there was no defense of self-defense,"
which he treats as a separate finding), asserting that there
was no evidentiary basis to support the court's upward
adjustment. We therefore will not review the trial court's
legal conclusion, and will look only to whether the outcome-
determinative finding -- that Powell chose to place himself
in the middle of the shoot-out instead of withdrawing -- was
clearly erroneous. We think that it was not.
Central to our decision is the court's tacit
determination that Powell knew of the possibility of a shoot-
out prior to its taking place. Especially given the
applicable preponderance-of-the-evidence standard, this
determination is sustainable. Immediately after seeing the
hooded men in the Subaru and hearing the car rapidly
-21-
21
accelerate in reverse, Powell insisted that Boykins and her
mother get out of the area as quickly as possible. This
gives rise to an inference that Powell knew serious trouble
might ensue. Moreover, Powell conceded on cross-examination
that he thought the men in the Subaru were gang members, and
that he knew there had been at least one shooting in the area
in the previous week.
Also important to our conclusion is the court's
finding that Powell possessed the .44 prior to the inception
of the shoot-out (a finding which is implicit in the court's
stated disbelief of Powell's testimony "as to the manner in
which he found himself in possession of the firearm here").
This finding, too, is sustainable. Powell's trial testimony
as to how he came to possess the .44 not only contradicted
the accounts he gave to an arresting officer shortly after
the shoot-out, but it also was inherently improbable. Powell
testified that, instead of taking cover inside Humboldt
Liquors with Cheney and Rhodes when shots unexpectedly began
to ring out (as one might have expected him to do), he began
running and (1) continued to run up the street towards a man
who had come around the corner and was pointing a gun at him;
(2) closed the distance between the man and himself before
the man could fire a shot; (3) disarmed the man, seized his
gun, and chased him off; and (4) turned on the run and shot
and twice hit an assailant who allegedly was shooting at him
-22-
22
from behind. The implausibility of this testimony alone is
sufficient to ground the court's contrary finding. Cf.
United States v. Hadfield, 918 F.2d 987, 999 (1st Cir. 1990)
(implausibility of a defendant's testimony can be affirmative
evidence of guilt), cert. denied, 500 U.S. 936 (1991).
Furthermore, there was hearsay evidence in the Pre-Sentence
Report indicating that a confidential informant had seen
Powell with the .44 prior to the shooting. Though not
introduced at trial, this evidence was available to the
district court at sentencing. See United States v. Tardiff,
969 F.2d 1283, 1287 (1st Cir. 1992) (court may rely on
hearsay evidence at sentencing).
What we have, then, is an armed Powell not only
remaining at a location where he knows a shoot-out is
possible, but also seeking out the two young men (Cheney and
Rhodes) who were involved in the initial confrontation -- a
confrontation that prompted Powell to insist that Boykins and
her mother leave the area immediately. In view of this
factual scenario, we cannot say that the court clearly erred
in finding that "defendant chose to place himself in the
middle of a shootout in which he chose not to withdraw, but
to engage." For the reasons stated above, this ends our
inquiry.
-23-
23
We therefore reject Powell's challenge to the
district court's finding that the .44 was possessed in
connection with another felony offense.
D. Three-Level Increase for Possession of the Guns Found in
D. Three-Level Increase for Possession of the Guns Found in
the Fairlawn Estates Apartment
the Fairlawn Estates Apartment
The district court found at sentencing that Powell
possessed the guns found in the Fairlawn Estates apartment.
It therefore increased Powell's offense level by one for
possession of the guns, see 2K2.1(b)(1), and by two because
one of the guns had an obliterated serial number, see
2K2.1(b)(4). Powell challenges this finding on two grounds.
First, he contends that there was insufficient evidence to
support the finding. Second, he asserts that his possession
of these guns was not "part of the same course of conduct or
common scheme or plan as the offense of conviction," as is
required by 1B1.3(a)(2). We are not persuaded by Powell's
arguments.
As we already have explained, the district court
did not abuse its discretion in deciding that the jury could
find, by a preponderance of the evidence, that the guns in
the Fairlawn Estates apartment were possessed by Powell. See
supra Section II-A. While fine semantic distinctions may
make it theoretically possible for a court to have acted
within the bounds of its discretion in deciding that a jury
could make a preponderant finding, and then to have committed
clear error in making the same preponderant finding itself,
-24-
24
we are confident that this is not such a case. We therefore
rely on our earlier explanation in rejecting Powell's
sufficiency argument.
Although Powell's "same course of conduct" argument
has some superficial appeal -- after all, the guns in the
Fairlawn Estates apartment did not play any role in the
Powell's possession of the .44 on Humboldt Avenue -- it is
foreclosed by circuit precedent. In United States v.
Sanders, 982 F.2d 4 (1st Cir. 1992), we analyzed whether a
defendant who had pleaded guilty to being a felon in
possession of a firearm and to using or carrying a firearm
during and in relation to a drug trafficking crime could be
subjected to an upward departure for possessing a weapon
(used to shoot his girlfriend in the head) which was not
named in the indictment. See 982 F.2d at 9-10. Answering
this question required us to consider the scope of the "same
course of conduct provision" in 1B1.3(a)(2), because the
possession of the gun used in the shooting could only be
taken into account at sentencing if it constituted relevant
conduct under 1B1.3. Id. at 9. In answering the question
in the affirmative, we said:
The "same course of conduct" concept
looks to whether the defendant repeats
the same type of criminal activity over
time. It does not require that acts be
connected together by common participants
or by an overall scheme. Here, defendant
did repeat the same type of criminal
activity -- he illegally possessed three
-25-
25
or four separate firearms when the victim
was shot. We have no difficulty viewing
the illegal possession of the four
weapons as all part of the same course of
conduct.
Id. at 9-10 (citation, ellipses, and internal quotation marks
omitted). In other words, the contemporaneous, or nearly
contemporaneous, possession of uncharged firearms is, in this
circuit, relevant conduct in the context of a felon-in-
possession prosecution. See id.
In this case, Powell clearly possessed the guns in
the Fairlawn Estates apartment at the same time that he
possessed the .44 used in the shooting. Accordingly, the
district court did not err in finding that the possession of
these weapons was part of the same course of conduct as the
offense of conviction.
We therefore reject Powell's challenge to the
court's three-level increase for the guns found in the
Fairlawn Estates apartment.
E. Two-Level Increase for Obstruction of Justice
E. Two-Level Increase for Obstruction of Justice
The district court found at sentencing that Powell
gave perjurious testimony as to how he came into possession
of the .44. The court therefore increased Powell's offense
level by two for obstruction of justice. See 3C1.1.
Powell challenges this finding on two grounds. First, he
contends that it was not accompanied by necessary subsidiary
findings that the false testimony was "concerning a material
-26-
26
matter" and given "with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or
faulty memory." See United States v. Dunnigan, 113 S. Ct.
1111, 1116 (1993). Second, he asserts that it was not
supported by the evidence. We need not and do not reach the
merits of Powell's arguments (though we observe that we
already have found there to be sufficient evidence to support
the district court's implicit finding that Powell possessed
the .44 prior to the shoot-out. See supra Section II-C.).
Because we have affirmed each of the other upward
adjustments imposed by the sentencing court, see supra
Sections II-C and II-D), Powell's 120-month sentence would
remain unchanged even if we were to find error in the court's
two-level obstruction enhancement. Reducing Powell's base
offense level by two would still give him a guideline range
of 120-150 months. Thus, the sentencing court would be
without the power to give him a lower sentence than the 120-
month term of imprisonment he actually received.
We therefore decline to address Powell's challenge
to the district court's finding that he obstructed justice by
giving perjurious testimony.
F. Refusal to Depart Downward
F. Refusal to Depart Downward
The district court declined Powell's request for a
downward departure because he allegedly committed the offense
of conviction "in order to avoid a perceived greater harm" --
-27-
27
injury to himself or others. See 5K2.11. The court
explained its decision as follows:
And with respect to objection number
31, I understand that to be the argument
made by the defendant here for downward
departure in this case. I must indicate
that the defendant's actions here were
not those of a good samaritan seeking to
protect the community and the lives of
other persons and it strikes me as not a
grounds [sic] for downward departure in
this setting.
While acknowledging that we have no jurisdiction to review
discretionary refusals to depart downward, see, e.g., United
States v. Lewis, 40 F.3d 1325, 1345 (1st Cir. 1994) (court of
appeals lacks jurisdiction to review district court's refusal
to depart downward so long as court was aware of its
authority to do so), Powell seizes on the court's use of the
term "good samaritan" and asserts that the court failed to
understand that it could depart if it found that Powell's
possession of the firearm was prompted by the need for self-
preservation. Powell's argument is unconvincing.
As we have already explained, the district court
clearly believed that Powell possessed the .44 prior to the
inception of the shoot-out. See supra Section II-C. This
necessarily means that Powell possessed the .44 prior to the
time when any need for self-defense would have arisen.
Accordingly, the court could not have found that Powell's
illegal possession was prompted by the need to protect
himself. This leads us to conclude beyond any doubt
-28-
28
whatsoever that the court did not misunderstand its departure
authority under 5K2.11; it merely decided that the facts
did not warrant a departure in this instance, and used the
term "good samaritan" a bit loosely in explaining its
decision.
We therefore lack jurisdiction over Powell's
challenge to the court's decision not to depart downward.
III.
III.
For the reasons stated, we affirm the conviction
and sentence of defendant Charles Powell.
-29-
29