___________

Nos. 96-1370/1371

___________

United States of America, *

*

Appellee, *

* Appeals from the United States

v. * District Court for the

* Eastern District of Missouri.

Steven Triplett, *

*

Appellant. *

___________

No. 96-1621

___________

United States of America, *

*

Appellee, *

*

v. *

*

Joseph Lee Triplett, *

*

Appellant. *

___________

 Submitted: September 11, 1996

 Filed: December 24, 1996

___________

Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

___________

BOWMAN, Circuit Judge.

On May 18, 1995, two armed, masked men robbed a United States

Post Office in St. Louis. At approximately 4:00 p.m., the men,

brandishing weapons, accosted a postal employee on a loading dock

and forced their way into the back room of the postal facility.

Once inside, the gunmen threatened two other postal employees and

compelled them to turn over a large amount of currency, checks, and

postal money orders. These money orders were imprinted with serial
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numbers that were recorded by postal officials and could be traced

in the event of a theft. During the course of the robbery, a shot

was fired by one of the gunmen. The bullet lodged in the wall and

later was recovered by police. Once the gunmen were satisfied that

there was no additional money on the premises, they forced all

three postal employees into an adjoining bathroom, bound two in

duct tape, and buried all three under a pile of mail bags, boxes,

and transportation carts. The gunmen then secured the bathroom

door with another pile of boxes and carts, removed the videotape

from the surveillance camera, and fled the post office.

Investigation of the robbery led to the arrest and indictment

of Steven Triplett and Joseph L. Triplett. Both were charged with

armed robbery of a United States Post Office in violation of 18

U.S.C. § 2114(a) (1994) and use of a firearm during the robbery in

violation of 18 U.S.C. § 924(c)(1) (1994). In addition, Steven

Triplett was charged as a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1) (1994). 

A jury found both Steven and Joseph Triplett guilty on the

armed robbery and § 924(c) charges. Steven waived trial by jury on

the § 922(g) charge and that part of the case was submitted to the

District Court based on the testimony elicited during his trial on

the other charges. The District Court found Steven guilty on the

§ 922(g) charge, and the court entered judgment against both men in

accordance with the jury's and the court's findings on the various

charges. The court sentenced Steven Triplett to 320 months of

imprisonment and Joseph Triplett to 360 months of imprisonment.

Both men appeal their armed robbery and § 924(c) convictions.

Steven does not appeal the § 922(g) conviction, but challenges the

District Court's sentence, the computation of which took this

conviction into account. Joseph does not appeal his sentence. 

Steven Triplett first challenges the District Court's

admission into evidence testimony by Walter Ivery regarding Ivery's
 1

Federal Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident . . . .

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attempt to cash a number of the stolen postal money orders four

days after the post-office robbery. Steven contends that this

testimony was improperly admitted evidence of "other crimes" under

Federal Rule of Evidence 404(b)1 meant only to sully his character

or prove his propensity to commit the charged crimes. 

Our review of the evidentiary rulings of a district court is

for abuse of discretion, see United States v. Ballew, 40 F.3d 936,

941 (8th Cir. 1994), cert. denied, 115 S. Ct. 1813 (1995); United

States v. Whitfield, 31 F.3d 747, 749 (8th Cir. 1994), and we "will

reverse only when an improper evidentiary ruling affects the

substantial rights of the defendant or when we believe that the

error has had more than a slight influence on the verdict."

Ballew, 40 F.3d at 941. 

Walter Ivery testified that Steven Triplett telephoned him on

May 22, 1995, four days after the robbery, and requested his

assistance in "moving" some money orders that Steven purportedly

acquired from a man who took them from a woman's purse. Ivery

further testified that he met with Steven on May 22, 1995, that

Steven handed him an envelope containing the stolen money orders,

and that Steven was present when Ivery eventually attempted to cash

the stolen money orders at another post office. 

Underlying Steven Triplett's objection to the admission of

Ivery's testimony is his mischaracterization of these statements as

evidence of "other crimes, wrongs, or acts" under Rule 404(b).

This evidence is more accurately characterized as direct evidence
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of the crime charged. See Ballew, 40 F.3d at 941; United States v.

Jones, 880 F.2d 55, 59 (8th Cir. 1989). Contrary to Steven's

assertions, this evidence was not admitted merely to tarnish his

reputation or to demonstrate his propensity to commit the charged

crimes; it was admitted as direct evidence that he was in

possession of the postal money orders that were stolen from the

post office only days before. A reasonable inference from such

possession was that Steven participated in the robbery of the post

office.

The possession of property recently stolen "is ordinarily a

circumstance from which a jury may reasonably draw the inference

and find, in the light of surrounding circumstances shown by the

evidence in the case, that the person in possession not only knew

it was stolen property, but also participated in some way in the

theft of the property." United States v. Nabors, 762 F.2d 642, 653

(8th Cir. 1985) (citation to quoted case omitted); cf. United

States v. Clark, 45 F.3d 1247, 1250 (8th Cir. 1995) ("possession of

recently stolen property is evidence of participation in a theft").

We find no abuse of discretion by the District Court in overruling

Steven's objections to the admission of this evidence. 

Steven Triplett advances similar arguments to demonstrate the

impropriety of admitting into evidence still photographs prepared

of him from a post-office surveillance videotape that was made

during Walter Ivery's failed attempt to cash the stolen money

orders. Like Ivery's testimony, these photographs were admitted as

relevant evidence of the crimes charged and not as evidence of

uncharged crimes nor as evidence intended to disparage Steven's

reputation or merely to illustrate his propensity to commit the

charged crimes. Steven's involvement in the scheme to cash the

stolen money orders is relevant and admissible evidence concerning

his involvement in the robbery that was executed to procure those

money orders. See Clark, 45 F.3d at 1250 (upholding jury
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instruction that permitted an inference of involvement in robbery

from possession of recently stolen property). 

In the alternative, Steven Triplett argues that these

photographs are cumulative since defense counsel stipulated at

trial to Steven's presence in the post office during Ivery's

attempt to cash the stolen money orders. Even if, as Steven

argues, this evidence was cumulative given Walter Ivery's in-court

testimony and defense counsel's stipulation regarding the events of

May 22, 1995, the prejudicial effect of its admission is

negligible. "Improper admission of evidence which is cumulative of

matters shown by admissible evidence is harmless error." Smith v.

Firestone Tire & Rubber Co., 755 F.2d 129, 132 (8th Cir. 1985).

Because Ivery's testimony regarding Steven's presence at the post

office was admissible, the still photographs confirming Steven's

presence, even if cumulative, are likewise admissible. The

District Court did not abuse its discretion in admitting this

evidence.

Steven Triplett next asserts that the District Court erred in

refusing to allow cross-examination of Walter Ivery concerning the

discovery by police of an alleged controlled substance during a

search of Ivery's home after his arrest for attempting to cash the

stolen money orders. This refusal, according to Steven, denied him

the opportunity to demonstrate Ivery's motive for testifying

falsely, namely, Steven's theory that prosecutors promised Ivery

clemency on future drug possession charges in exchange for his

testimony against Steven. 

"The Confrontation Clause of the Sixth Amendment guarantees to

a defendant the opportunity for effective cross-examination of

witnesses against him, including inquiry into the witnesses'

motivation and bias." United States v. Willis, 997 F.2d 407, 415

(8th Cir. 1993), cert. denied, 510 U.S. 1050 (1994). This

guarantee, however, is not without limitation. "[We] have long
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recognized that the trial judge must retain discretion to limit the

scope of cross-examination." United States v. Wood, 834 F.2d 1382,

1384 (8th Cir. 1987) (citations omitted); accord United States v.

Juvenile NB, 59 F.3d 771, 778 (8th Cir. 1995). Reversal of a

district court's decision to limit cross-examination is warranted,

therefore, "only where there has been clear abuse of discretion,

and a showing of prejudice to the defendant." Wood, 834 F.2d at

1384.

The District Court allowed defense counsel to question Ivery

about the results of this search outside the presence of the jury,

and concluded that the inquiry was an improper attempt to impeach

Ivery for bias. The confiscated material was never tested or

positively identified as a controlled substance and Ivery was never

charged with possession of a controlled substance. Ivery testified

that he entered into no agreement with the government conditioning

his testimony in this trial on favorable treatment on any future

charges made in connection with the alleged drug possession. The

officers who came in contact with Ivery likewise testified that

they made no promises of leniency in return for Ivery's cooperation

with their investigation of the post-office robbery. Defense

counsel was provided ample opportunity to cross-examine Ivery in

the presence of the jury regarding his numerous prior convictions,

and we find no abuse of discretion in the District Court's refusal

to allow inquiry into an incident as to which Ivery was never

charged and as to which he testified that he was not promised

favorable treatment by the government. 

Both Steven Triplett and Joseph Triplett claim that they were

subjected to unduly suggestive line-up procedures and that the

resulting identifications were improperly admitted into evidence.

"To sustain a challenge to an out-of-court line-up, the defendant

must first show that the procedure employed was impermissibly

suggestive. If it was, the court must then determine whether,

under the totality of the circumstances, the suggestive procedures
 2

Steven Triplett argues that his "brightly colored, loud, but

surprisingly tasteful, Hawaiian-type print shirt" drew unwarranted

attention to him "in the midst of a sea of solid white tops and

dark green bottoms." Brief for Appellant at 22. We find this

argument unpersuasive. Though Steven's shirt may have been eyecatching, wearing it in the line-up was his choice; the police did

not select his attire for him. 

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created a very substantial likelihood of irreparable

misidentification." United States v. Ramsey, 999 F.2d 348, 349

(8th Cir. 1993); see also Manson v. Brathwaite, 432 U.S. 98 (1977).

Steven Triplett challenges the District Court's admission of

testimony by a witness, Robert Trogler, who selected Steven from a

police line-up on May 25, 1995--one week after the robbery.

Trogler identified Steven as one of two men he observed loitering

in an alley behind the post office, in close proximity to the door

used by the robbers, shortly before the robbery occurred. When

Trogler was transported to the police station to view the line-up,

he was told that the individuals included in the line-up may have

been involved in the robbery and that he should alert the

detectives if he recognized either person he had seen in the alley.

The detectives did not suggest that any particular individual in

the line-up was implicated in the robbery, or that Trogler should

identify any specific person. The line-up itself consisted of five

African-American males, all of the same general description given

by Trogler to police immediately after the robbery, and all of

substantially the same age, height, weight, complexion, and

features as Steven Triplett.2

 After viewing the line-up, and

without any improper suggestion from detectives, Trogler pointed

out Steven as one of the individuals he observed standing outside

the post office on the day of the robbery. We find nothing in this

procedure that is unduly suggestive. Because Steven has failed to

make a threshold demonstration that the line-up procedure was

impermissibly suggestive, we need go no further in our inquiry.

See Ramsey, 999 F.2d at 349. The District Court did not abuse its

discretion in admitting this evidence.
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Robert Trogler also identified Joseph Triplett as one of the

men he saw behind the post office after examining a series of

photographs presented to him by police officers approximately one

month after the robbery. The photographic spread contained a

photograph of Joseph Triplett and individual photographs of five

other persons. All the persons depicted were African-American

males of approximately the same age, complexion, weight, and

physical characteristics. The photographs were handed to Trogler

in a stack, and he was instructed to examine each photograph and to

advise the detectives if he recognized either of the individuals he

had seen in the alley. The detectives did not indicate to Trogler

that any of the individuals depicted was involved in the robbery or

that any particular photograph should be selected. The stack of

photographs was in random order and nothing in its arrangement or

composition leads us to believe that it somehow suggested that

Trogler should select Joseph's photograph. We conclude that the

identification procedure was not unduly suggestive, and that the

District Court did not abuse its discretion in admitting Trogler's

testimony regarding his identification of Joseph Triplett. 

We turn now to Steven Triplett's and Joseph Triplett's

allegations that the evidence elicited at trial was insufficient to

support the jury's finding that they committed the post-office

robbery. "This court will reverse a conviction for insufficient

evidence only when we conclude that no reasonable trier of fact

could find guilt beyond a reasonable doubt." Ballew, 40 F.3d at

942; accord United States v. Bascope-Zurita, 68 F.3d 1057, 1060

(8th Cir. 1995), cert. denied, 116 S. Ct. 741 (1996); United States

v. Behr, 33 F.3d 1033, 1035 (8th Cir. 1994). "[W]e view the

evidence in the light most favorable to the guilty verdict,

granting the government every reasonable inference therefrom."

United States v. McCarthy, 97 F.3d 1562, 1568 (8th Cir. 1996);

accord United States v. Swinton, 75 F.3d 374, 380 (8th Cir. 1996).

Moreover, "it is not our function to pass upon the credibility of

witnesses or to attempt to weigh the evidence and substitute our
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judgment for that of the jury." Ballew, 40 F.3d at 942 (quoting

United States v. Prionas, 438 F.2d 1049, 1052 (8th Cir.), cert.

denied, 402 U.S. 977 (1971)). Having viewed the record under the

foregoing standards of review, we conclude that sufficient evidence

was presented for a reasonable jury to conclude beyond a reasonable

doubt that Steven Triplett and Joseph Triplett committed the postoffice robbery in question. 

Robert Trogler testified that he observed Steven and Joseph

Triplett outside the post office moments before the robbery

occurred. Trogler was able to identify Steven after viewing a

police line-up and Joseph after inspecting a series of photographs.

Vernon Jordan testified that he accompanied Steven and Joseph

Triplett on a "dry run" of the robbery only days before the actual

crime. Jordan visited Steven's apartment late in the afternoon on

the day the robbery occurred, observed cash, guns, masks and gloves

strewn on the bed, and listened while Steven and Joseph recounted

minute details of the robbery. Jordan also testified that he saw

Joseph Triplett dispose of a plastic bag containing what he

believed to be the surveillance videotape removed from the post

office during the robbery. Walter Ivery testified that Steven

Triplett requested his assistance in cashing money orders that were

ultimately identified as those stolen from the post office during

the May 18, 1995, robbery. Steven Triplett, during questioning by

detectives, admitted that he was in possession of the stolen money

orders only four days after the robbery. A search of Steven's

apartment after his arrest uncovered the weapon that ballistics

tests established was discharged during the robbery, and further

tests revealed that the fingerprint left on this gun was Steven's.

Despite the fact that none of the three postal employees present

during the robbery could identify their masked assailants, we

believe this is ample evidence for a reasonable trier of fact to

find guilt beyond a reasonable doubt. 
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Steven Triplett next contends that the District Court

improperly calculated his sentence under the United States

Sentencing Guidelines Manual. "The applicability of a section of

the Sentencing Guidelines to a particular case is a question of law

which we review de novo." United States v. McFarlane, 64 F.3d

1235, 1237 (8th Cir. 1995).

Because Steven's sentence under the Guidelines for violations

of both §§ 2114(a) and 924(c) might have been less severe than had

he been convicted of violating only § 2114(a) with an enhancement

for using a firearm, the District Court was required to calculate

Steven's prison term by comparing the results achieved from two

methods of computation. See U.S. Sentencing Guidelines Manual

§ 2K2.4, commentary (n.2) (1995). The District Court was required

to (1) determine the base offense level and sentencing range under

§ 2B3.1 for the robbery, excluding only those specific offense

characteristics listed under subsections (b)(2)(A)-(F) related to

the possession, use, or discharge of a firearm, and then add to the

maximum sentence under that computation the sixty-month mandatory

sentence under § 2K2.4(a) and 18 U.S.C. § 924(c) for the use of a

firearm; and (2) determine the base offense level under § 2B3.1,

taking into account all specific offense characteristics, including

any applicable characteristic under subsections (b)(2)(A)-(F)

related to the possession, use, or discharge of a firearm, but then

disregard the sixty-month mandatory sentence under § 2K2.4(a) and

18 U.S.C. § 924(c). After comparing the sentence range calculated

under these two approaches, the District Court was permitted to

depart upward if the calculation under the first method would

"result in a decrease in the total punishment." U.S. Sentencing

Guidelines Manual § 2K2.4, commentary (n.2) (1995). In any case,

the upward departure could not "exceed the maximum of the guideline

range that would have resulted had there not been a count of

conviction under . . . § 924(c)," id., that is, the maximum of the

range under the second calculation. 
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Pursuant to the first method described by the Guidelines, the

District Court computed Steven's base offense level under § 2B3.1

for the robbery, including a two-level enhancement under

§ 2B3.1(b)(2)(F) for an express threat of death, while also adding

the sixty-month mandatory sentence imposed under 18 U.S.C. § 924(c)

and § 2K2.4 for the use of a firearm in relation to a robbery.

Steven argues that this enhancement amounts to double-counting in

violation of the Guidelines provisions. If, as Steven contends,

the District Court added the two-level enhancement under subsection

(F) based on the "possession, use, or discharge of a firearm," this

increase was erroneous because it, indeed, amounts to doublecounting. "Where a sentence under this section [U.S. Sentencing

Guidelines Manual § 2K2.4] is imposed in conjunction with a

sentence for an underlying offense, any specific offense

characteristic for the possession, use, or discharge of an

explosive or firearm (e.g., § 2B3.1(b)(2)(A)-(F) (Robbery)) is not

to be applied in respect to the guideline for the underlying

offense." U.S. Sentencing Guidelines Manual § 2K2.4, commentary

(n.2). Commentary to the Guidelines is binding on the courts when

it interprets or explains a guideline, "unless it violates the

Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline." United States v.

Jackson, 67 F.3d 1359, 1370 (8th Cir. 1995) (quoting Stinson v.

United States, 508 U.S. 36, 38 (1993)), cert. denied, 116 S. Ct.

1684 (1996). If, however, the District Court added the two-level

enhancement under § 2B3.1(b)(2)(F) for an express threat of death

unrelated to the "possession, use, or discharge of a firearm," the

enhancement was proper in conjunction with § 924(c) as explained in

Application Note 2 to § 2K2.4 of the Sentencing Guidelines. On

remand, the District Court, if it elects to enhance Steven's

sentence based on subsection (F), should clarify that the conduct

on which it bases this enhancement is not firearm-related. 

Pursuant to the second method described by the Guidelines, the

District Court calculated Steven's base offense level for robbery
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under § 2B3.1, including enhancement under the specific offense

characteristics of subsections (b)(2)(A) and (F), and disregarded

the sixty-month sentence required by § 2K2.4. The District Court

increased Steven's base offense level by two levels under

§ 2B3.1(b)(2)(F) for an express threat of death and further

increased Steven's base offense level by seven levels under

§ 2B3.1(b)(2)(A) for the discharge of a firearm. Steven challenges

the Court's use of both sections to enhance his sentence.

Section 2B3.1(b)(2) provides:

(A) If a firearm was discharged, increase by 7 levels;

(B) if a firearm was otherwise used, increase by 6

levels; (C) if a firearm was brandished, displayed, or

possessed, increase by 5 levels; (D) if a dangerous

weapon was otherwise used, increase by 4 levels; (E) if

a dangerous weapon was brandished, displayed, or

possessed, increase by 3 levels; or (F) if an express

threat of death was made, increase by 2 levels.

U.S. Sentencing Guidelines Manual § 2B3.1(b)(2) (1995). The

government concedes that the disjunctive "or" before the last

clause of this section precludes an enhancement for both the

discharge of a firearm under subsection (A) and for the express

threat of death under subsection (F). We conclude that the

construction of this Guidelines provision suggests that the

particular subsections are to be applied alternatively and not

collectively. Use of the disjunctive indicates that only one of

the enumerated offense characteristics under subsection

§ 2B3.1(b)(2) is to be applied, rather than a combination of more

than one such offense characteristics. This subsection is also

structured such that conduct under subsection (A), discharging a

firearm, would likely encompass the conduct involved under, for

example, subsection (C), brandishing, displaying, or possessing a

firearm. If the firearm was discharged, it was necessarily

possessed. Under these circumstances, it is unlikely that the

drafters of the Guidelines intended that the base offense level be
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increased by seven levels for discharging a firearm and by another

five levels for brandishing, displaying, or possessing a firearm.

See United States v. "LNU" Omar, 16 F.3d 1168, 1171 (11th Cir.

1994) (holding § 2B3.1 "offers a set of alternative increases");

United States v. Farrier, 948 F.2d 1125, 1127 (9th Cir. 1991)

("Only one of the increases in offense levels may be applied to the

same offense . . . ."). In making the calculation required under

the Guidelines' second method, the District Court, on remand, may

enhance Steven's base offense level under either subsection (A) or

subsection (F), but not under both. 

Steven Triplett contends that the evidence is insufficient to

support an enhancement under subsection (A) for the discharge of a

firearm since it is unclear whether he or Joseph Triplett actually

fired the weapon. We find this argument to be without merit. The

seven-level enhancement under § 2B3.1(b)(2)(A) is applicable "[i]f

a firearm was discharged" during the robbery. The Guidelines do

not require that the defendant, as opposed to an accomplice or

co-conspirator, have fired the weapon. Rather, there merely must

be evidence, as there is in this case, that a weapon was discharged

during the robbery. 

Moreover, the evidence presented was sufficient to permit the

District Court to find that Steven discharged the weapon. The

evidence elicited at trial establishes that one of the gunmen

discharged a firearm during the post-office robbery, the police

retrieved the bullet from the post-office wall, the police

conducted ballistics tests confirming that the bullet removed from

the post-office wall was fired from the gun found in Steven's

apartment, and Steven's fingerprint was found on the gun.

Finally, Steven Triplett asserts that he was denied his Sixth

Amendment right to effective assistance of counsel when his defense

counsel failed to object to the District Court's miscalculation of

his sentence under the United States Sentencing Guidelines Manual
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and failed to present an alibi defense. Because we have already

addressed the sentencing error by remanding Steven's case to the

District Court for correction, Steven has failed to establish the

prejudice necessary to prevail on an ineffective assistance of

counsel claim. See Strickland v. Washington, 466 U.S. 668, 687

(1984). Steven will receive the relief to which he is entitled at

resentencing, and we need not reconsider this error under a claim

of ineffective assistance of counsel. 

The challenge to counsel's failure to raise an alibi defense

is not ripe for review. Generally, an appellant's claims of

ineffective assistance "are not cognizable on direct appeal."

United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994)

(quoting United States v. Sanchez, 927 F.2d 376, 378 (8th Cir.

1991)). Rather, "such claims properly are raised in a proceeding

under 28 U.S.C. § 2255 or in a habeas corpus proceeding." Id.; see

Jennings, 12 F.3d at 840. An exception to this rule arises only on

the rare occasion when the district court has developed a record on

the ineffectiveness issue. See United States v. Williams, 897 F.2d

1430, 1434 (8th Cir. 1990). Because no record was made in the

District Court concerning counsel's failure to raise an alibi

defense, we are unable to review the merits of this ineffective

assistance claim, and we decline to address it further.

For the reasons stated above, we (1) affirm the convictions of

both appellants, and (2) vacate Steven Triplett's sentence and

remand to the District Court for resentencing.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.