United States Court of Appeals

For the First Circuit

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.

Donald C. Lockhart, Assistant United States Attorney, with

whom Robert Clark Corrente, United States Attorney, and Dulce

Donovan, Assistant United States Attorney, were on brief for

appellee.

 

March 29, 2005

 
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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

discovered the handgun on the passenger seat of Carpenter’s

vehicle, and seized a small bag of marijuana. After waiving his

Miranda rights in writing, Carpenter admitted that he had bought

the handgun for protection two weeks earlier from one Dennis

Morrow. 

In due course, Carpenter was indicted for possessing a

firearm following 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

United States v. Liranzo, 385 F.3d 66, 69 n.2 (1st Cir.), cert.

denied, 125 S. Ct. 637 (2004). Carpenter stipulated to the first

and third elements of the offense, preserving for trial solely the

issue as to whether he had actual or constructive possession of the
1To counter Carpenter’s contention about the absence 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. 

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firearm seized 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, to 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 prosecution presented evidence of actual

possession as well as constructive possession, consisting of (i)

Officer MacGregor’s testimony that he had seen Carpenter holding

the gun in his hand at the time of the traffic stop, and (ii)

Carpenter’s post-arrest confession 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 passenger-side seat of the vehicle, an area over which

Carpenter unquestionably had exercised dominion and control.
2Carpenter does not contend on appeal that the district court

erred in instructing the jury that there was no dispute that

Carpenter had been driving the vehicle. See, e.g., United States

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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 owned 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 vehicle. The district court

overruled the objection, and the jury subsequently returned its

verdict of guilty.

On appeal, Carpenter contends that the district court's

jury instruction constitutes an abuse of discretion.2 We agree
v. 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.

3The 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.

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that it would have done better had the district court simply

responded to the specific question posed by the jury – viz., had it

instructed that the government had adduced no evidence as to the

identity 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 jury instructions should “not unduly

emphasize the theory of the prosecution, thereby deemphasizing

proportionally the defendant’s theory”).3 Even assuming arguendo

that the challenged instruction was erroneous, however, any error

was harmless. See United States 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 particular case

depends upon a host of factors, all readily

accessible to reviewing courts. These factors
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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 of

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.3d 55, 64 (1st Cir. 2003), 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.

The 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

framed Carpenter. 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 knowledge – was

originally located somewhere in the vehicle, other than on the

passenger seat. The police officers did not find the gun until
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they conducted a post-arrest search of the vehicle, and planted it

on the vehicle’s passenger seat to bolster their perjurious

testimony 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 ownership, surely 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

without first having made an additional series of attenuated

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
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motive. From the verdict, we conclude that the jury decided not to

disbelieve the police officers’ account of the traffic stop,

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 seized from the

vehicle was a small amount of marijuana, and the jury would have

had to draw the implausible inference that Carpenter recklessly

would have fled a traffic stop, run from his wrecked vehicle, and

engaged the 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. 2001) (“‘Evidence of a defendant's flight . . . may be

presented at trial as probative of a guilty mind if there is an

adequate factual predicate creating an inference of guilt of the

crime charged.’”) (emphasis added; citation omitted). The

desperation of Carpenter's flight affords 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 the
4We can ascribe no conclusive significance to the fact that

the jury chose to ask this particular question. Although Carpenter

argues that this demonstrates 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 and/or constructive possession beyond a reasonable doubt,

and inquired about the vehicle’s ownership merely to determine

whether that evidence was adduced at trial and if so, was

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constructive possession issue, not actual possession, and the

detail and consistency of the police officers’ accounts vouched for

their credibility. See, e.g., United States v. Salimonu, 182 F.3d

63, 71 (1st Cir. 1999) (noting that witnesses’ testimony was

“detailed and basically consistent,” affording the jury

“substantial evidence of [defendant’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

described how 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 Carpenter, Carpenter looked “startled,” and

immediately 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.4
consistent with its decision to convict. 

5Notwithstanding the fact that police gave Carpenter 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 record contain 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. 

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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

name of the person from whom he bought the gun, and his need for

the gun), and it is entirely reasonable to conclude that the jury

would accord it considerable 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

and damaging evidence that can be admitted against him. . . .

Certainly, confessions have a profound impact on the jury.’”)

(citation omitted); Ventura-Cruel, 356 F.3d at 64 (“‘Confessions

are by nature highly probative and likely to be at the center of

the jury's attention.’”) (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
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credited the 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 evidentiary value of an out-of-court

confession depends on the credibility of the officer who repeats

it, the court correctly allows the jury to make this call.”).

The defense does not contend – let alone adduce any

evidence – that the vehicle belonged to someone other than

Carpenter, 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

erred by imposing a sentence which violates the recent decision in

United States v. Booker, 125 S. Ct. 738 (2005), which held that the

Sentencing Guidelines are advisory rather 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

did not mandate the sentence it imposed. See id. at 75. Carpenter

cannot satisfy this burden. The district court stated at

sentencing:

This defendant is a danger to the

community. . . . I give him the longest
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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 it would 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 gain nothing from a Booker remand, the sentence

properly imposed by the district court must be affirmed.

Affirmed.