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
amended as follows:

this

Court issued

on

June 24,

1993,

is

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
amended as follows:
On

cover

this

sheet under

Court issued

list

of

on

June 24,

1993,

counsel "Assistant

is

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
amended as follows:

this

On page 2, line 11:

Court issued

on

June 24,

replace "taking" with "taken"

1993,

is

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,
________________________
appellant.
Thomas C. Frangillo, Assistant United States Attorney, with w
___________________
A. John Pappalardo, United States Attorney, was on brief for appell
_ _______________
____________________

June 24, 1993

___________________

Per Curiam.
___________
sentence for

Gary Barrows

being a felon in

U.S.C.

922(g)(1).

following

the discovery

appeals his
possession of a

Barrows was
of

conviction and

.22

charged

firearm.
in

this

caliber revolver

18
case

in

vehicle occupied by Barrows and three others during a routine

traffic stop by two
the

stop, Barrows was

After approaching the

remove the gun from
and

Boston police officers.

kick it

occupants

seated on the

At the

back seat of

vehicle, Officer Matthews saw

his waist, toss it onto

underneath

of the car were

the car's

front

time of
the car.
Barrows

the floorboard,
seat.

arrested and taken

All

four

to the police

station for booking.

At
that

the police

his companions

station, Barrows
were not

told the

responsible for

two officers
the gun

and

Barrows admitted that

four prior felony
felon in

it belonged

to him.

convictions, he was

possession

of a

firearm.

As Barrows

charged with being

Barrows was

had
a

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

Matthews' observation of Barrows' possession of the

is

not independent

evidence

corroborating

his

Officer
revolver

subsequent

-2-2-

admissions to ownership, and

that without this testimony the

evidence was insufficient to convict.

348

U.S.

84

(1954),

corroborated by

Under Opper v. Smith,

_____
_____

an extrajudicial

independent evidence

admission

in order to

must

be

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

enforcement

by

Barrows

officials--that

as

encompassing

testified

to

his

all

law

post-arrest

statements.
The
not to

requirement of independence refers to the evidence,

________
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

O'Connell,
_________

703 F.2d 645,

original).
solely on
evidence

defendant

confess."
648 (1st

United States
______________

Cir. 1983)

Since the government in this

Barrows' admissions
of Barrows'

(emphasis in

case did not rely

but instead introduced

possession

of the

v.

gun, his

other

argument

based on Opper must fail.

_____
Barrows next contends that the record does not establish
that

he

knowingly and

testify at
the district

his trial.

intelligently
We disagree.

waived

to

The record reveals that

court, upon being informed

-3-3-

his right

that Barrows wished

to

testify

against the

advice

Barrows regarding his right

district judge
would be

of

counsel, fully

to testify in his defense.

informed Barrows that

brought out

if

going to have

to be

his prior

Barrows testified,

Howard [Barrows' lawyer]

advised

can't tell

convictions

but that

you what to

your own decision."

The

"Mr.

do.

It's

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
Neither

more

elaborate procedure

Barrows nor

after this

his

than

trial counsel

discussion that Barrows still

Barrows did not

conclude, as

take the stand.

this was

informed the

court

wished to testify.

Given this

did the district court,

required.

record, we must

that Barrows knowingly

and intelligently waived his right to testify in his behalf.

Finally,
claiming
review

Barrows requests

that he
his

32(c)(3)(A),

did not

presentence
a criminal

copy of the presentence

a remand

for re-sentencing,

have a sufficient
report.

Under

defendant must

opportunity to

Fed.

R. Crim.

be provided

report at least ten days

P.

with a

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

furnish

his client

with a

copy of

he had neglected to

the

presentence report

-4-4-

which

was timely sent to

state,
on

Barrows' counsel.

The lawyer did

however, that he had reviewed the report with Barrows

previous occasions.

The district court then recessed in

order to allow Barrows to read the report.

When
the

the hearing re-convened,

court that he had reviewed the report with Barrows "page

by page."

Neither

Barrows nor

they needed additional time

view,

Barrows' lawyer informed

the failure

continuance

miscarriage of justice.
prejudice since

to go over the

to invoke

effectively

his counsel indicated

report.

Rule 32(c)(3)(A) or

waives

the

claim,

In

not claim that

our

request a
absent

Here there is no indication

Barrows does

that

of any

his sentence--

determined solely on the

basis of his prior convictions--was

wrongly computed.

United States v.
_____________

437,

445 (1st

Cir.

See
___

1989) (late

Wright, 873
______

disclosure of

F.2d

addendum to

presentence report
error

was harmless error).

in the sentence,

a remand for

Absent an arguable

re-sentencing would be

pointless even if the claim had not been waived.

Affirmed.
________

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