-
USCA1 Opinion
July 7, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____
No. 91-1794
UNITED STATES OF AMERICA,
Appellee,
v.
GARY BARROWS,
Defendant, Appellant.
___________
ERRATA SHEET
The opinion of this Court issued on June 24, 1993, is
amended as follows:
On cover sheet "United Staates Attorney" should read "United
_______________________ ______
States Attorney".
_______________
July 1, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____
No. 91-1794
UNITED STATES OF AMERICA,
Appellee,
v.
GARY BARROWS,
Defendant, Appellant.
___________
ERRATA SHEET
The opinion of this Court issued on June 24, 1993, is
amended as follows:
On cover sheet under list of counsel "Assistant United
States Attornery Thomas C. Frangillo" should be corrected to read
"Assistant United States Attorney Fongillo."
June 25, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____
No. 91-1794
UNITED STATES OF AMERICA,
Appellee,
v.
GARY BARROWS,
Defendant, Appellant.
___________
ERRATA SHEET
The opinion of this Court issued on June 24, 1993, is
amended as follows:
On page 2, line 11: replace "taking" with "taken"
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 91-1794
UNITED STATES,
Appellee,
v.
GARY BARROWS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
Gregory Burr Macaulay, by appointment of the Court, for
________________________
appellant.
Thomas C. Frangillo, Assistant United States Attorney, with whom
___________________
A. John Pappalardo, United States Attorney, was on brief for appellee.
_ _______________
____________________
June 24, 1993
___________________
Per Curiam. Gary Barrows appeals his conviction and
___________
sentence for being a felon in possession of a firearm. 18
U.S.C. 922(g)(1). Barrows was charged in this case
following the discovery of a .22 caliber revolver in a
vehicle occupied by Barrows and three others during a routine
traffic stop by two Boston police officers. At the time of
the stop, Barrows was seated on the back seat of the car.
After approaching the vehicle, Officer Matthews saw Barrows
remove the gun from his waist, toss it onto the floorboard,
and kick it underneath the car's front seat. All four
occupants of the car were arrested and taken to the police
station for booking.
At the police station, Barrows told the two officers
that his companions were not responsible for the gun and
Barrows admitted that it belonged to him. As Barrows had
four prior felony convictions, he was charged with being a
felon in possession of a firearm. Barrows was convicted
following a jury trial that included the testimony of the two
police officers. Thereafter, Barrows was sentenced under the
Armed Career Criminal Act, 18 U.S.C. 924(e), to a mandatory
minimum fifteen-year term of imprisonment, and to three years
of supervised release.
In this appeal, Barrows first contends that Officer
Matthews' observation of Barrows' possession of the revolver
is not independent evidence corroborating his subsequent
-2-
-2-
admissions to ownership, and that without this testimony the
evidence was insufficient to convict. Under Opper v. Smith,
_____ _____
348 U.S. 84 (1954), an extrajudicial admission must be
corroborated by independent evidence in order to support a
conviction. Barrows maintains that the testimony concerning
his physical possession of the gun does not qualify as
"independent" evidence because it came from the same source--
broadly construed by Barrows as encompassing all law
enforcement officials--that testified to his post-arrest
statements.
The requirement of independence refers to the evidence,
________
not to the source of the evidence. Opper, 348 U.S. at 93.
_____
Testimony that is otherwise admissible or corroborative "does
not suddenly become less admissible or corroborative or
itself in need of corroboration simply because the eyewitness
also heard the defendant confess." United States v.
____ ______________
O'Connell, 703 F.2d 645, 648 (1st Cir. 1983) (emphasis in
_________
original). Since the government in this case did not rely
solely on Barrows' admissions but instead introduced other
evidence of Barrows' possession of the gun, his argument
based on Opper must fail.
_____
Barrows next contends that the record does not establish
that he knowingly and intelligently waived his right to
testify at his trial. We disagree. The record reveals that
the district court, upon being informed that Barrows wished
-3-
-3-
to testify against the advice of counsel, fully advised
Barrows regarding his right to testify in his defense. The
district judge informed Barrows that his prior convictions
would be brought out if Barrows testified, but that "Mr.
Howard [Barrows' lawyer] can't tell you what to do. It's
going to have to be your own decision." Pertinently, the
district court also told Barrows that if he had any questions
he could raise them with the court, and that unless the court
heard otherwise it would assume that whatever decision was
made was Barrows' own choice.
No more elaborate procedure than this was required.
Neither Barrows nor his trial counsel informed the court
after this discussion that Barrows still wished to testify.
Barrows did not take the stand. Given this record, we must
conclude, as did the district court, that Barrows knowingly
and intelligently waived his right to testify in his behalf.
Finally, Barrows requests a remand for re-sentencing,
claiming that he did not have a sufficient opportunity to
review his presentence report. Under Fed. R. Crim. P.
32(c)(3)(A), a criminal defendant must be provided with a
copy of the presentence report at least ten days in advance
of sentencing unless the defendant waives the minimum ten-day
______
period. At the outset of the sentencing hearing, Barrows'
lawyer informed the district court that he had neglected to
furnish his client with a copy of the presentence report
-4-
-4-
which was timely sent to Barrows' counsel. The lawyer did
state, however, that he had reviewed the report with Barrows
on previous occasions. The district court then recessed in
order to allow Barrows to read the report.
When the hearing re-convened, Barrows' lawyer informed
the court that he had reviewed the report with Barrows "page
by page." Neither Barrows nor his counsel indicated that
they needed additional time to go over the report. In our
view, the failure to invoke Rule 32(c)(3)(A) or request a
continuance effectively waives the claim, absent a
miscarriage of justice. Here there is no indication of any
prejudice since Barrows does not claim that his sentence--
determined solely on the basis of his prior convictions--was
wrongly computed. See United States v. Wright, 873 F.2d
___ _____________ ______
437, 445 (1st Cir. 1989) (late disclosure of addendum to
presentence report was harmless error). Absent an arguable
error in the sentence, a remand for re-sentencing would be
pointless even if the claim had not been waived.
Affirmed.
________
-5-
-5-
Document Info
Docket Number： 91-1794
Filed Date： 7/7/1993
Precedential Status： Precedential
Modified Date： 9/21/2015