United States v. Carver

USCA1 Opinion

       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]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, 832 F.2d 642,

  647-48 (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 id.

            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) [1999 WL 431140, at *18].

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