[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 99-1125

UNITED STATES,

Appellee,

v.

DAVID CARVER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Boudin, Circuit Judges.

David W. Bate on brief for appellant. Jay P. McCloskey, United States Attorney, and Margaret D. McGaughey, Assistant United States Attorney, on brief for appellee.

August 6, 1999

Per Curiam. Upon careful review of the record and briefs, and even assuming that the question were properly before us, we conclude that the district court did not commit reversible error in refusing defendant's requests for instruction and argument on his accomplice witness theory. As the district court explained, the theory was not supported by sufficient evidence of the witnesses' complicity in the specific offense. See United States v. Olmstead,

(1st Cir. 1987). Moreover, considering the whole of the instructions and the evidence of defendant's possession of the pistol, in any event defendant was not prejudiced by the refused instruction and argument. See

We will not override the jury's choice to credit at least in part the government's witnesses, and so we reject defendant's challenge to the sufficiency of the evidence. See United States v. Lara, F.3d , No. 97-2215, slip op. at 40-41 (1st Cir. June 30, 1999) [

]. Affirmed. See 1st Cir. Loc. R. 27.1.