# United Stat es Court of Appeals For the First C ircuit No. 03-2180 UNITED STATES OF AMERICA, Appellee,

v. RANDOLPH CARPENTER, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ronald R. Lagueux, Senior U.S. District Judge ]

Before Lynch, Circuit Judge , Cyr, Senior Circuit Judge , and Howard, Circuit Judge .

James M. Fox for appellant. DonaldC. Lockhart , Assistant United St a tes Attorney, with whom Robert Clark Corrente , United States Attorney, and Dulce Don ovan , Assistant United States Attorney, were on brief for appellee.

March 29, 2005-2- CYR, Senior Circuit Judge . Defendant Randolph Carpenter appeals from the judgment of conviction and sentence entered by the district court. While on patrol in November 2001, two Providence police officers stopped a speeding vehicle driven by Carpenter. When one of the officers walked up to the passenger-side window of the vehicle, he observed Carpenter was holding a handgun. Carpenter promptly sped off, and the police pursued a high-speed chase, which abruptly ended when Carpenter then ran into a jersey barrier. Carpenter fled on foot, then crossed a busy interstate highway, where he was apprehended and arrested. The police discoveredthe handgun on the passenger seat of Carpenter’s vehic le, and seized a small bag of marijuana. After waiving his Miranda rights in writ ing, C arpenter admitted that he had bought the handgun for protection two weeks earlier from one De nni s Morrow. In due course, Carpent er w as indicted for possessing a firearmfollowing a felony conviction, see 18 U.S.C. § 922(g), which requires proof of the following elements: (i) the defendant is a convicted felon; (ii) who knowingly possessed a firearm; and (iii) the firearm was in or affected interstate commerce. See UnitedStates v. Liranzo , 385 F.3d 66, 6 9 n.2 (1st Cir.), cert. denied , 125 S. Ct. 637 (2004). Carpenter stipulated to the first andthird elements of the offense, preserving for trial solely the issue as to whether he had actual or constructive possession of the1 To counter Carpenter’s contention about the absen ce of

fingerprints on the weapon, the government adduced expert testimony to the effect that it is exceedingly difficult to lift viable fingerprints from the surfaces of this particular weapon. -3- firearmseized from the vehicle which he was driving. See id. Actual possession may be established, inter alia , with evidence that the defendant had either an ownership or a possessory interest in the firearm, whereas constructive possession can be based upon evidence that the defendant knowingly had the ability, as well as the intent , t o exercise dominion and control over either the firearm, or the area wherein the firearm was located. See United States v. Carlos Cruz , 352 F.3d 499, 510 (1st Cir. 2003), cert. denied , 125 S. Ct. 176 (2004).

At trial, the prosec utio n presented evidence of actual possession as well as constr ucti ve possession, consisting of (i) Officer MacGregor’s testimony that he had seen Car pent er holding the g un in his hand at the time of the traffic stop, and (ii) Carpenter’s post-arrest confes sio n that he was the owner of the gun. Defense counsel sought to counteract that evidence by contending that the police officers lied, and by noting that no fingerprints had been found on the gun. 1

The government’s constructive possession theory was premised primarily upon the eventual retrieval of the weapon from the passen ger-si de seat of the vehicle, an area over which Carpenter unquestionably had exercised dominion and control.2 Carpenter does not contend on appeal that the district court

erredin instructing the jury that there was no dispute that Carpenter had been driving the vehicle. See , e.g. , United States -4- Defense counsel contended that the police had found the gun elsewhere in the car , then planted the gun on the passenger-side seat in an effort to frame Carpenter, and that the government had not established that Carpenter o wne d the vehicle he was driving (and hence the handgun).

During its deliberations, the jury transmitted a note to the court, inquiring whether “it is possible to find [out] the identity of the owner of the [vehicle].” The court first responded that the government had adduced no evidence as to ownership of the vehicle, then added that “it doesn’t matter who the owner was,” because “[t]he important thing is that this defendant was driving the car, the vehicle, at the time.” After the jury resumed its deliberations, defense counsel objected, contending that the court’s supplemental jury instruction improperly prejudiced the defense by suggesting that the jury should not consider a critical component of the defense theory against “constructive possession”

– viz. , the fact that the government had not adduced evidence as to the identity of the owner of the vehic le. The district court overruledthe objection, and the jury subsequently returned its verdict of guilty.

On appeal, Carpenter contends that the district court's jury instructi on c onstitutes an abuse of discretion. 2 We agreev. Sabetta , 373 F.3d 75, 80 (1st Cir.) (“A district court must use

extreme caution in answering questions from juries so as not to usurp the jury’s fact finding role.”), cert. denied , 125 S. Ct. 433 (2004). Hence, we need not address the matter.

3 The government has not argued on appeal that Carpenter failed to adduce enough evidence of his defense theory to require its submission to the jury in the first instance. -5- that it would have done better had the district court simply respondedto the specific question posed by the jury – viz. , had it instructedthat the government had adduced no evidence as to the id ent ity of the vehicle’s owner – and refrained from further comment regarding its import vel non . See United States v. Shay , 57 F.3d 126, 134 (1st Cir. 1995) (noting that excluding evidence cannot be considered harmless error where it “went to heart of the defense”); United States v. Ouimette , 753 F.2d 188, 193 (1st Cir. 1985) (same); see also Perez v. United States , 297 F.2d 12, 16 (5th Cir. 1961) (noting that ju ry i nstructions should “not unduly emphasize the t heory of the prosecution, thereby deemphasizing proportionally the defendant’s theory”). 3 Even assuming ar gue ndo that the challenged instruction was erroneous, however, any error

was harmless. See United State s v. Gray , 199 F.3d 547, 550 (1st Cir. 1999).

“The correct inquiry is whether, assuming that the damaging potential of the . . . [excluded evidence] were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such error is harmless in a particu l ar case depends upon a host of factors, all readily accessible to reviewing courts. These factors-6- include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative , the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points , the extent o f cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.” Dolinger v. Hall , 302 F.3d 5, 12 n.6 (1st Cir . 2002) (citation omitted). The burden of persuasion rests with the government to demonstrate harmless error, see United States v. Ventura-Cruel , 356 F.3d55, 64 (1st Cir. 20 03), and we may not declare a constitutional error harmless where there is a "reasonable possibility" that it influenced the verdict, see United States v. Mulinelli-Navas , 111 F.3d 983, 992 (1st Cir. 1997).

First, we determine what impact the challenged instruction on the vehicle’s ownership may have had on the defense. T he ownership issue was relevant both (i) to refuting the government’s evidence that Carpenter had constructive possession of the gun, and (ii) to the defense theory that the arresting officers framedCarpenter. More specifically, the defense invited the jury to adopt the following theory of the case: The government did not adduce evidence of the vehicle’s ownership because the vehicle did not belong to Carpenter. The gun – which belonged to the owner of the vehicle and of which Carpenter had no prior kno wledge – was originally located somewhere in the vehicle, other than on the passenger seat. The police officers d id not find the gun until-7-

they conducted a post-arrest search of the vehicle, and planted it

on the vehicle’s passenger seat to bolster their perjurious testimo ny that Carpenter had handled the gun during the initial traffic stop and the car chase.

We conclude that the district court’s instruction was harmless, beyond a reasonable doubt, for two principal reasons. First, the court did not instruct the jury to disregard positive evidence that the vehicle did not belong to Carpenter, but rather to disregard the fact that the government introduced no evidence – either way – as to its ownership. Even now, Carpenter makes no contention that he did not own the vehicle. Hence, the jury could only have speculated as to its ownersh ip, su rely a dubious launching pad for the attenuated defense theory.

Second, vehicle ownership was simply the prefatory element in the defense theory, and even if the jury were to have assumed from the government’s failure of proof that Carpenter did not own the vehicle, it would not have adopted the defense theory wit hout first having made an additional series of attenuat e d inferences: (i) the gun also belonged to the vehicle’s owner, not the vehicle’s current user/driver ( viz. , Carpenter); (ii) Carpenter neither knew of the gun’s presence in the vehicle, nor intended to exercise control or dominion over it; and (iii) the police had not only the opportunity to “frame” Carpenter ( viz. , the presence of a “hidden” gun in the vehicle not belonging to Carpenter), but the-8-

motive . From the verdict, we conclude that the jury decided not to disbelieve the police officers’ account of the traffic sto p, Carpenter’s brandishing of the gun, nor the results of the ensuing vehicle inspection, and that therefore, there is no "reasonable possibility" that the district court’s instruction influenced the jury verdict. See Mulinelli-Navas , 111 F.3d at 992 .

Carpenter’s undisputed conduct tended to belie any defense contention that he did not know the gun was in the car. Besides the gun, the only incriminating evidence seize d from the vehicl e was a small amount of marijuana, and the jury would have hadto draw the implausible inference that Carpenter recklessly would have fled a traffic stop, run from his wrecked vehicle, and engagedthe police in a life-threatening foot pursuit across a busy interstate highway, all to avoid relatively minor drug possession charges. See United States v. Otero-Mendez , 273 F.3d 46, 53 (1st Cir. 2 001) (“‘ Evidence of a defendant's flight . . . may be presentedat trial as probative of a guilty mind if there is an adequate factual predicate creating an inference of gu ilt of the crime charged .’”) (emphasis added; citation omitted). The desperation of Carpenter's flight affo rds persuasive support for the inference that he knowingly possessed the handgun.

Any putative instructional error was harmless in light of the overall strength of the government’s case. See Dolinger , 302 F.3d at 12 n.6 . The vehicle’s ownership was relevant only to the4 We can ascribe no conc lus ive significance to the fact that

the jury chose to ask this particular question. Although Carpenter argues that this demonst rat es that the jury had rejected the government’s evidence of actual possession, and was considering an acquittal with respect to constructive possession, it is no less plausible that the jury had decided that the government had proven actual a nd/o r constructive possession beyond a reasonable doubt, an dinquired about the vehicle’s ownership merely to determ in e whether that evidence was adduced at trial and if so, was -9- c onstructive possession issue, not actual possession, and th e detail and consistency of the police officers’ accounts vouched for their credibility. See , e.g. , United States v. Salimonu , 182 F.3d 63 , 7 1 (1st Cir. 1999) (noting that witnesses’ testimony was “detailedand basically consistent,” affording the jury “substantial evidence of [defend an t’s] guilt”). For example, Officer MacGregor testified, that Carpenter did not put his vehicle into park when he was pulled over ( viz. , “[t]he reverse lights did not flicker on”), which suggested to MacGregor that Carpenter might drive away while MacGregor walked up to his vehicle. MacGregor describedhow Carpenter was looking back in his side-view mirror at the parked police cruiser, and how the gun that he observed in Carpenter’s hand was “black, unique,” “an old style gun” which “had two round cylinders in the rear.” He testified that, when he made eye contact with Carpe nter, Carpenter looked “startled,” and immediatel y sped off. Finally, the account given by MacGregor’s fellow officer, Sion, is entirely consistent with that provided by MacGregor. If the jury credited this testimony, the ownership of the vehicle was comparatively irrelevant. 4consistent with its decision to convict.

5 Notwithstanding the fact that police gave Carpent er Miranda warnings before he confessed, he attempted to argue at trial that the police beat him after his arrest, thus inviting an inference that his confession might have been coerced. See , e.g. , United States v. Bezanson-Perkins , 390 F.3d 34, 39 (1st Cir. 2004). Not only does the recordcontain no evidence supporting this argument, the government adduced hospital records reflecting that Carpenter bore no indication of having been the victim of a post-arrest beating. -10-

The government also adduced evidence of Carpenter’s postarrest oral confession that he had purchased the gun two weeks earlier. 5 His confession was quite detailed ( viz. , including the

na me of th e person from whom he bought the gun, and his need for the gun), and it is entirely reasonable to conclude that the jury wouldaccord it con sid erable weight in determining the issue of possession. See Arizona v. Fulminante , 499 U.S. 279, 296 (1991) (“‘[T]he defendant’s own confession is probably the most probative anddamaging evidence that can be admitted against him. . . . Certainly, confessions have a profound impact on the jury.’”) (citation omitted); Ventura- Crue l , 356 F.3d at 64 (“‘Confessions

are by nature highly probative and likely to be at the center of the jury 's a ttention.’”) (citation omitted); Lufkins v. Leapley , 965 F.2d 1477, 1482 (8th Cir. 1992) (finding trial error harmless on the ground that “[a] detailed confession is the most probative of all evidence. . [and] a full confession by a defendant has an extraordinary impact on a finder of fact”). Although Carpenter did not sign a written confession, given its detail, the jury likely-11-

creditedthe testimony of the police officer who took the oral confession. See United States v. Flores , 63 F.3d 1342, 1377 (5th Cir. 1995) (“When the evid enti ary value of an out-of-court

co nfessi on depends on the credibility of the officer who repeats it, the court correctly allows the jury to make this call.”).

The defens e does not contend – let alone adduce any evidence – t hat th e vehicle belonged to someone other than Carpen ter , nor that the facts elaborated in his oral confession

were the product of a police fabrication. Accordingly, we conclude that any error in the district court instruction was harmless.

Carpenter further argues that the district court plainly erredby imposing a sentence which violates the recent decision in UnitedStates v. Booker , 125 S. Ct. 738 (2005), which held that the Sentencing Guidelines are adviso ry r ather than mandatory. See United States v. Antonakopoulos , 399 F.3d 68, 74 (1st Cir. 2005). We review his argument for plain error, and it is his burden to demonstrate that he was prejudiced by the district court sentence, in that there is a “reasonable probability” that the court would have imposed a lesser sentence if the sentence had been after Booker , viz. , if the district court had known that the Guidelines didnot mandate the sentence it imposed. See id. at 75. Carpenter cannot satisfy th is burden. The district court stated at sentencing: This defendant is a danger to the

community. . . . I give him the longest-12- sentence I can give him for the protection of society. In this case it’s ten years, 120 months, to be served consecutively to the state sentences he is now serving. I don’t think I have discretion to do otherwise. Even if I did, this is what I would do in order to separate him from society . (Emphasis added.) The district court thus made clear that there is

no reasonable probability that i t woul d have imposed a lesser sentence under the Booker rubric. See Antonakopoulos , 399 F.3d at 81 (“[I]f the district judge has said at sentencing that he would have reached the same result regardless of the mandatory nature of the Guidelines, that is a powerful argument against remand.”). As Carpenter could ga in nothing from a Booker remand, the sentence properly imposed by the district court must be affirmed.

Affirmed .