United States v. Perry

U.S. Court of Appeals for the First Circuit April 29, 1999

Opinion

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<pre> [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit ____________________ No. 98-1896 UNITED STATES, Appellee, v. THEODORE PERRY, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary M. Lisi, U.S. District Judge] ____________________ Before Torruella, Chief Judge, Selya and Lynch, Circuit Judges. _____________________ Geoffrey DuBosque for appellant. Thomas M. Gannon, Attorney, Department of Justice, with whom Margaret E. Curran, United States Attorney, and Gerard B. Sullivan, Assistant United States Attorney, were on brief, for appellee. ____________________ April 28, 1999 ____________________

Per Curiam. Defendant-appellant, Theodore Perry, appeals his conviction for possessing a firearm in violation of 18 U.S.C. 922(g)(1). We affirm in all respects. We set forth the facts as a reasonable jury could have found them to be. On July 3, 1997, uniformed Providence police officer Anabel Bez was working in a marked police cruiser in Providence's West End. Bez received a call about two men who were suspected of selling drugs. Both were described as African- American and wearing white T-shirts; one was wearing red pants, the other blue pants. In response to the call, Bez radioed Officer Edward Gonzlez, met with him, and arranged to converge with him on the Cranston-Dexter intersection. When Officer Bez arrived at the intersection, he saw the two men who had been described in the call. Perry was one of the men, and Wesley Lucas was the other. As Bez parked his cruiser on Cranston, he saw Officer Gonzlez's cruiser coming towards him along Cranston. Gonzlez parked his cruiser nose-to-nose to Bez's, directly in front of the two men. The men turned and began to walk away. Officer Bez got out of his car and told the men to stop. Lucas stopped, but Perry ran away. Officer Gonzlez pulled his cruiser around the corner onto Dexter Street and blocked Perry's escape. When Perry saw Gonzlez blocking his path, he ducked into a clump of bushes and discarded a handgun. Gonzlez shouted, "Gun!", but Bez did not hear him. When Perry emerged from the bushes, he was directly in front of Bez, who arrested him. Officer Bez drove the cruiser around the corner to Officer Gonzlez's car. Gonzlez went into the bushes and located the discarded handgun. When Bez joined him there, he showed Bez the gun on the ground deep in the bushes. As the two officers were looking at the handgun, they heard the sound of breaking glass. Perry had kicked out the back window of Bez's cruiser, and was running down Dexter Street. Gonzlez chased him and recaptured him immediately. The officers called their sergeant and Detective Robert Badessa to the scene. Badessa took photographs of the scene and seized the gun, a Bryco Jennings .380 caliber pistol. Following a jury trial in the United States District Court for the District of Rhode Island, Perry was convicted of possessing a firearm as a previously convicted felon. The district court sentenced him to a term of 77 months imprisonment to be followed by a three year period of supervised release. Perry's first argument is that the prosecutor committed reversible error in his closing argument by stating: (1) that the defendant was a wife abuser, and (2) that the defendant testified to a different version of the truth. At first blush, these comments seem to fall within the pale: the "wife abuser" reference related to evidence of a prior conviction, and the second comment appears sufficiently neutral to avoid classification as impermissible vouching. Even if we assume arguendo the validity of the defendant's assertions, we are constrained by the fact that the defendant did not interpose a contemporaneous objection to these statements during the course of the prosecutor's closing argument. Accordingly, we review only for plain error. Error rises to this level only when it "so shocking that it seriously affected the fundamental fairness and basic integrity of the proceedings conducted below." United States v. Ortiz, 23 F.3d 21, 26 (1st Cir. 1994) (internal quotation marks and citations omitted). Here, the statements complained of fall far short of the plain error threshold. They do not in any way interfere with the jury's ability to resolve the paramount issue in this case -- whether Perry possessed a firearm. Moreover, they were followed by instructions from the district court advising the jury: (1) that statements by counsel are not evidence and are not to be considered in reaching a verdict, and (2) that it is the responsibility of the jury to weigh the credibility of witnesses. In light of this fact, and the overwhelming evidence of Perry's guilt, there is no basis for this Court to conclude that the alleged erroneous statements by the prosecutor in his closing argument resulted in a miscarriage of justice meriting a reversal. See United States v. Giry, 818 F.2d 120, 133 (1st Cir.), cert. denied, 484 U.S. 855 (1987). Perry's second argument is that he was denied his right to a fair trial because the district court refused to divulge the identity of, or conduct an in camera examination of, the informant who called the police. We review a district court's decision not to force the prosecution to divulge the identity of a confidential informant for abuse of discretion. See United States v. Lewis, 40 F.3d 1325, 1335 (1st Cir. 1994). In this context, the abuse of discretion standard is quite deferential: the district court's resolution of a disclosure request should be upheld as long as it comports with some reasonable rendition of the record. See United States v. Robinson, 144 F.3d 104, 106 (1st Cir. 1998). The Supreme Court first recognized a "tattler's privilege" -- that is, a privilege to withhold the identity of an informant -- in Roviaro v. United States, 353 U.S. 53 (1957). See Robinson, 144 F.3d at 106. The privilege is designed to protect the government's sources and to shield citizens who contribute their knowledge to facilitate the prosecution of criminal acts. Still, the privilege is not absolute. In determining whether justification for an exception exists, the nisi prius court must balance the interests undergirding the privilege against the accused's fundamental right to a fair trial, and, in doing so, must take into account the full set of relevant circumstances -- including the nature of the crime charged, the contours of the defenses asserted, the available means of proving the charges and defenses, and the significance of the informant's role. See id. To further the policies behind the Roviaro rationale, the trial court's analysis begins with a presumption favoring confidentiality. Thus, the defendant bears the burden of persuasion to show that disclosure is necessary to mount an adequate defense. See id. This burden is heavy, but not insurmountable. See id. If, for example, the informant is the sole participant, other than the accused, in the transaction charged, or if the informant is the only person who is in a position to amplify or contradict crucial testimony of government witnesses, then the court may order disclosure. See id. Here, Perry moved for disclosure of the identity of the person who called Officer Bez on July 3, 1997, to tell him about two African-American men suspected of selling drugs at the Cranston-Dexter intersection. At the hearing before the district court, the prosecutor stated that a detective had interviewed the informant and confirmed that the informant saw neither the chase of Perry, nor his arrest, nor the discarding of the gun. The district court noted that the informant had called the police to report suspected drug dealing, but the crux of the case was whether or not Perry possessed a firearm. Finding that the informant was akin to a tipster, it denied Perry's motion to disclose the informant's identity. In this instance, because the government's informant neither participated in nor witnessed the events that inculpated the defendant and led to his arrest, the informant is a mere tipster. See id. Tipsters, as opposed to informants who are active participants in the crimes charged, generally deserve anonymity. See United States v. Hemmer, 729 F.2d 10, 15 (1st Cir. 1984). The district court did not abuse its discretion in refusing to force the government to divulge the informant's identity. Third, Perry argues that the district court committed error in interpreting the Sentencing Guidelines to the extent that Perry's sentence was imposed consecutively to his state sentence for violating his state probation. Appellate review of a district court's application of the Sentencing Guidelines involves a bifurcated inquiry. We review de novo a sentencing judge's assessment of a guideline's legal meaning and scope, but review the district court's factfinding only for clear error. See United States v. Florence, 143 F.3d 11, 12 (1st Cir. 1998). Within certain limits, a district court's decision to impose a concurrent or consecutive sentence is reviewed for abuse of discretion. See United States v. McCarthy, 77 F.3d 522, 536 (1st Cir.), cert. denied, 117 S. Ct. 479 (1996). Sentencing Guidelines 5G1.3 governs the "Imposition of Sentence on a Defendant Subject to an Undischarged Term of Imprisonment." Most importantly, application note 6 to 5G1.3 provides in part that [i]f the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense, and has had such probation, parole, or supervised release revoked, the sentence for the instant offense should be imposed to run consecutive to the term imposed for the violation of probation, parole, or supervised release in order to provide an incremental penalty for the violation of probation, parole, or supervised release. See 7B1.3 (Revocation of Probation or Supervised Release) (setting forth a policy that any imprisonment penalty imposed for violating probation or supervised release should be consecutive to any sentence of imprisonment being served or subsequently imposed). Here, Perry was on state probation for a previous Rhode Island offense at the time of his federal offense. At the time of his sentencing before the district court, his probation had been revoked by the Rhode Island authorities. Examining the application note, the district court found it to be applicable, and sentenced Perry to 77 months imprisonment to be served consecutive to his state sentence for violation of his probation. The Supreme Court has stated that commentary to the Sentencing Guidelines must be given "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Stinson v. United States, 508 U.S. 36, 45 (1993) (quotation marks and citations omitted). Nothing in the application note quoted above, see U.S.S.G. 5G1.3 (Commentary, note 6), is contrary to the Sentencing Guidelines. The district court correctly followed the application note, and Perry was properly sentenced to a federal sentence to be served consecutive to his state term of imprisonment. Affirmed.</pre>

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Reference

Status: Unpublished