UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

GILLIAM, DARRON G.


97-3084a

D.C. Cir. 1999


*	*	*


Rogers, Circuit Judge: Darron Gilliam and Ricardo Gross  appeal their
convictions for armed bank robbery and related  offenses on the
grounds that the district court erred in  denying their motions to
suppress evidence and statements,  for severance under Fed. R. Crim.
P. 14, and for judgment  notwithstanding the verdict on the firearms
charges. Gross  also challenges the district court's denial of his
motion for  judgment notwithstanding the verdict on his conviction for
 carjacking.1 Finally, Gilliam challenges his sentence under  the
"three strikes" statute, 18 U.S.C. s 3559(c) (1994), on the  ground
that the government failed to prove that he had  previously been
convicted of two serious violent felonies. We  affirm all of the
convictions except Gilliam's s 922(g) firearms  conviction.




__________

n 1 Gross also contends that he was severely prejudiced by the 
district court's refusal to make an in limine ruling as to whether the
 government could cross-examine his wife about an alleged inappro-
priate contact with a juror. The district court declined to rule 
before direct examination, and Gross chose not to put his wife on  the
stand. Because he did not call his wife to testify, Gross  forfeited
his right to raise this issue on appeal. See Luce v. United  States,
469 U.S. 38, 43 (1984).


I.


As a result of a robbery of the Hospitality Community  Federal Credit
Union, Gilliam and Gross were indicted for  armed bank robbery, 18
U.S.C. s 2113(a) and (d) (1994); the  use or carrying of two firearms
during a crime of violence, id.  s 924(c) (1994); possession of
firearms by a convicted felon,  id. s 922(g) (1994); armed carjacking,
D.C. Code Ann. ss 22- 2903 and 22-105 (1981); and first-degree theft
from a senior  citizen, id. ss 22-3811, 22-3812(a), 22-3901 and 22-105
 (1981).2 They were found guilty by the district court of the 
felon-in-possession count and by the jury on all other counts.3  A
third defendant, Jerome Thomas, was acquitted on all  counts. The
district court sentenced Gilliam to two mandato- ry terms of life
imprisonment under the "three strikes"  statute, 18 U.S.C. s 3559(c),
for armed robbery and the  s 924(c) firearms conviction, and Gross to
an aggregate of 228  months imprisonment.


We review the evidence in Part II, where we address  appellants'
contention that the district court erred in denying  their motions to
suppress evidence and statements because  the police lacked probable
cause for a warrantless search of a  bag in Gilliam's car. In Part
III, we address appellants'  severance claims. In Part IV, we address
their challenges to  their firearms convictions. Finally, in Part V,
we address  their challenges to their sentences.


II.


At approximately 7:30 a.m. on January 31, 1996, two  masked men robbed
the Hospitality Community Federal  Credit Union in Northeast
Washington, D.C., taking over  $142,000 in cash and $242,000 in food
stamps. The masked  men confronted Ellsworth Brewer, the bank manager,




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n 2 Prior to trial, on the government's motion, the district court 
dismissed the charge of possession of two firearms during a crime  of
violence (the armed carjacking), in violation of D.C. Code  ss
22-3204(b) and 105.


3 The defendants elected a bench trial on the s 922(g) charges.


was opening the bank's parking lot gate so that he could park  his car,
which was nearby with the driver's door open and the  engine running.
One man pressed something hard into  Brewer's back that Brewer thought
was a gun; the masked  man said, "[y]ou know what this is. Don't act
crazy." Brew- er saw about two inches of a gun barrel protrude from
the  hands of the other man. While one masked man led Brewer  to the
bank, the other parked Brewer's car in the gated lot.  The masked men
then forced Brewer to let them into the  bank; while one tied
Evangeline Brown (another employee  who was already in the bank) with
duct tape, the other told  Brewer that if he missed the combination
for the vault, he  would be shot in the head and his brains blown out.
After  obtaining currency and food stamps from the vault, the  masked
men tied Brewer and fled, taking Brewer's car.4  Brewer and Brown
described the masked men as being about  six feet tall: one was
wearing a light tan or beige trench-coat,  dark corduroy pants, and
gloves; the other was wearing a  dark three-quarter length coat.


While canvassing the crime scene, the police found Gilliam's  wallet,
with his photo identification, in the bank's parking lot,  along with
a laundry bag like that used by the masked men to  carry the currency
and food stamps from the bank. Upon  determining that Gilliam had a
criminal record, including a  prior armed robbery, the police went to
his home at approxi- mately 9:30 a.m. and learned from a neighbor that
about an  hour earlier, Gilliam drove up with two other men in a gray 
Plymouth Reliant K car, unloaded cardboard boxes and plas- tic bags,
and took them into Gilliam's house. About 45  minutes later, the
police saw two men leave Gilliam's house  and get into the same gray
car, which had been parked in  front of the house. Each man was
carrying a plastic bag;  one was wearing a tan trench-coat and the
other was wearing  a dark coat.


The police followed the car until it stopped and its two  occupants,
Jerome Thomas and Ricardo Gross, got out. At 




__________

n 4 Brewer's car was found more than a month after the robbery  with a
broken steering wheel column near K Street, N.E.


that point, the police ordered Thomas and Gross away from  the car and
to the sidewalk, where they were placed on the  ground and handcuffed.
Through the open car door, a police  officer saw the tan trench coat
draped across the front  passenger seat and partially hanging over a
plastic bag.  Believing that the bulky, bundled objects outlined in
the bag  were likely proceeds from the robbery, the officer searched 
the bag and found over $15,000 in cash and $1,270 in food  stamps.
Gross and Thomas were then formally arrested;  Gilliam was arrested at
approximately the same time near his  house.5 A subsequent search of
Gilliam's home led to the  recovery of two ski masks, gloves, a 9mm
handgun, a semiau- tomatic pistol, a piece of paper stamped with the
name of the  credit union, approximately $117,500 in cash, and
approxi- mately $136,000 in food stamps. A subsequent search of the 
car produced two additional plastic bags found in the back  seat
containing $900 in currency, money wrappers, checks  block-stamped
from the credit union, and a small key from a  teller's cash drawer
that fit the drawers of the bank. In the  pocket of the trench coat
the police found a roll of duct tape,  which contained Gross'
fingerprint, that matched the duct  tape used to tie Brown and Brewer
at the bank. A sales  receipt and registration in the glove box


Probable cause to arrest exists where "the facts and cir- cumstances"
within a law enforcement officer's knowledge are  "sufficient to
warrant a prudent [person] in believing that [the  suspects] had
committed or [were] committing an offense."  Beck v. Ohio, 379 U.S.
89, 91 (1964); see also Henry v. United  States, 361 U.S. 98, 102
(1959); Brinegar v. United States,  338 U.S. 160, 175 (1949); Lincoln
v. United States, 992 F.2d  356, 358 (D.C. Cir. 1993). Probable cause
to search exists  where in view of the "totality of the




__________

n 5 Both appellants engaged in incriminating conduct. When  Gross was
told that he was under arrest, he asked, "What is it?  Did somebody
see the car?" He later told one of the detectives in  the transport
car "I messed up this time." Gilliam, in identifying  himself to the
police, reached for his wallet and discovered that it  was missing.


a fair probability that contraband or evidence of a crime will  be
found in a particular place." Illinois v. Gates, 462 U.S.  213, 238
(1983); United States v. Turner, 119 F.3d 18, 20  (D.C. Cir. 1997).
"Although probable cause to arrest and  probable cause to search have
different emphases," United  States v. Dawkins, 17 F.3d 399, 404 (D.C.
Cir. 1994), articulat- ing when probable cause exists is a "common
sense" determi- nation, which turns on the "practical considerations
of every- day life." Gates, 462 U.S. at 231 (quoting Brinegar, 338
U.S.  at 175). While each fact standing alone may be insufficient, 
the combination of all of the facts can establish probable  cause,
United States v. Catlett, 97 F.3d 565, 574 (D.C. Cir.  1996); United
States v. Halliman, 923 F.2d 873, 881 (D.C.  Cir. 1991), and certain
conduct that may appear "innocent to  a lay person may have entirely
different significance to an  experienced [law enforcement] officer."
Catlett, 97 F.3d at  573-74 (quoting United States v. Hicks, 752 F.2d
379, 384  (9th Cir. 1985)). We review the legal conclusion of probable
 cause de novo, the district court's findings of historical fact  for
clear error, and we give due weight to inferences drawn  from the
evidence by law enforcement officers and the district  court. See
Ornelas v. United States, 517 U.S. 690, 699 (1996);  United States v.
Harrison, 103 F.3d 986, 989 (D.C. Cir. 1997).


Applying these principles, we find no error in the district  court's
denial of appellants' motions to suppress the evidence  found in the
bag in Gilliam's car.6 Based on the physical  evidence at the robbery
scene, the eyewitnesses' statements,  and the tight time frame, as
well as their own observations  and those of Gilliam's neighbor, the
police had reason to  believe that the two men who got into Gilliam's
car had  participated in criminal activity. Compare Brinegar, 338 U.S.




__________

n 6 The government contends that only Gilliam preserved his  Fourth
Amendment appeal because Gross conceded that there was  no basis upon
which to challenge the seizure of evidence from the  car if officers
could rely on their collective knowledge to establish  probable cause.
We disagree. Although Gross' counsel acknowl- edged the legal
standard, he proceeded to attack the officers'  collective knowledge
and argued in the district court that there was  no basis for a
probable cause finding.


at 175-76, and Catlett, 97 F.3d at 573, and Halliman, 923  F.2d at
881-82, and United States v. Young, 598 F.2d 296,  298-300 (D.C. Cir.
1979), and Coleman v. United States, 420  F.2d 616, 621 (D.C. Cir.
1969), with Beck, 379 U.S. at 91, and  Henry, 361 U.S. at 100-02. The
same evidence provided a  sufficient foundation for the police to
believe that a plastic  bag carried into the car by the two men
leaving Gilliam's  home was likely to contain proceeds of the robbery.
See  Gates, 462 U.S. at 238; Turner, 119 F.3d at 20; Dawkins, 17  F.3d
at 404; United States v. Garrett, 959 F.2d 1005, 1007-08  (D.C. Cir.
1992); United States v. Caroline, 791 F.2d 197, 201  (D.C. Cir. 1986).
The police officer at the scene of the  robbery noted that the bank
manager had not told him that  either a wallet or laundry bag had been
in the parking lot  prior to the robbery. It was reasonable,
therefore, for the  police to connect the wallet and bag with the
masked men and  to believe that Gilliam's home or the car in which he
had been  seen after the robbery might contain evidence of the
robbery.  See United States v. Salamanca, 990 F.2d 629, 634-35 (D.C. 


Gilliam's neighbor saw Gilliam and two other men drive to  Gilliam's
house in a gray Plymouth K car the morning of the  robbery. Shortly
thereafter, the police saw Gross and Thom- as get into the same car
upon leaving Gilliam's house. Given  the closeness in time and use of
the same car, the police could  reasonably believe that Gross and
Thomas were the same  men who arrived at the house with Gilliam. One
man wore a  tan trench coat similar to that worn by one of the masked 
robbers. Both men carried bulky, heavy plastic bags. A  police officer
thought that one of the plastic bags he saw  through the open car door
contained bulky objects consistent  with the shape of money and food
stamps. Viewed in its  totality, the evidence provided probable cause
for the police to  search the plastic bag and to seize the bundled
money and  food stamps found in the bag. See California v. Acevedo,
500  U.S. 565, 573-74 (1991); cf. United States v. Ross, 456 U.S. 
798, 824 (1982); Caroline, 791 F.2d at 201-02.


Because the police had probable cause to search the plastic  bag, we do
not reach the issue of whether there was also 


probable cause to search the entire car (which was searched  later
pursuant to a warrant), see Ross, 456 U.S. at 799-800;  whether the
police could have seized the plastic bag and its  contents in a valid
search incident to arrest, see New York v.  Belton, 453 U.S. 454
(1981); cf. United States v. Fafowora,  865 F.2d 360 (D.C. Cir. 1989);
whether the contents of the  bag would have been inevitably discovered
by lawful means;  see Nix v. Williams, 467 U.S. 431, 447-48 (1984); or
whether  the police, pursuant to a Terry stop, could have searched the
 bag in a protective sweep for weapons. See Terry v. Ohio,  392 U.S. 1
(1968); Michigan v. Long, 463 U.S. 1032 (1983).  Appellants'
contention that the evidence subsequently found  in Gilliam's home and
car, and the statements made by Gross  after his arrest, should also
have been suppressed as the fruit  of an illegal search fails given
the lawful search of the bag in  the car. Hence, the district court
did not err in denying  appellants' motions to suppress.


III.


Appellants also contend that the district court abused its  discretion
in denying their motions for severance of defen- dants under Fed. R.
Crim. P. 14. United States v. Brown, 16  F.3d 423, 427 (D.C. Cir.
1994); United States v. Manner, 887  F.2d 317, 324 (D.C. Cir. 1989).
They maintain that because  there were three defendants and only two
masked robbers,  each defendant's claim of innocence was tantamount to
pre- senting the prosecutor's case against the other two defen- dants;
indeed, the government's silence on their respective  roles in the
commission of the robbery heightened their need  to incriminate each
other. In addition, they contend that a  severance was required
because the joint trial compromised  their right to exclude
inadmissible evidence that was seriously  prejudicial: Gilliam's
letter to Thomas and Gross' testimony  about Gilliam's alleged drug


In appellants' view, they presented mutually antagonistic  defenses
that necessitated a severance of their trials under  Rule 14. Gilliam
did not testify, but Gross and Thomas did, 


each attempting to prove that he was not one of the two  masked
robbers. Thomas testified that he went to Gilliam's  house to borrow
money for car repairs and just happened to  be there when the other
two men arrived in Gilliam's gray  Reliant K car. Over his
codefendants' objections, Thomas  introduced a letter from Gilliam
stating that Thomas had  nothing to do with the robbery, and that
Gilliam would  somehow inform the trial judge of this fact. Gross, in
turn,  presented a different innocent presence defense, testifying 
that he had no knowledge of the robbery and, over Gilliam's 
objection, that he had gone to Gilliam's house for drugs and  met
Thomas there. In closing argument, Gilliam's counsel  told the jury
that it could infer from the evidence that Gross  and Thomas were the


Mutually antagonistic defenses exist where the acceptance  of one
defendant's defense is irreconcilable with the defense  presented by a
codefendant. See Zafiro v. United States, 506  U.S. 534, 537-38
(1993). Under Rule 14, concerns about  prejudice stem from the danger
that the jury will unjustifi- ably infer that this conflict alone
demonstrates that both  defendants are guilty, United States v.
Haldeman, 559 F.2d  31, 71-72 (D.C. Cir. 1976); Manner, 887 F.2d at
326; see  Zafiro, 506 U.S. at 537-38, or alternatively, that the jury
will  decide that at least one of the defendants is guilty regardless 
of whether the government has met its burden of proof.  Zafiro, 506
U.S. at 542 (Stevens, J. concurring). To demon- strate that the
district court abused its discretion in denying  a severance, however,
the appellant must show more than  "the presence of some hostility"
among codefendants, and  "more than the fact that co-defendants whose
strategies were  generally antagonistic were tried together." Brown,
16 F.3d  at 433 (internal quotations omitted). Even where codefend-
ants implicate each other, their defenses are not necessarily 
mutually antagonistic, and even when they are mutually  antagonistic,
they are not necessarily improperly prejudicial.  Thus, in Brown, 16
F.3d at 433, despite the fact that the first  defendant's denial of
any involvement in the charged offense  was contradicted by a second
defendant's defense that the  drugs and gun seized from her apartment


first defendant, the court noted that the jury could have  believed
either defense or could have believed that neither  defense was
entirely accurate. See id. Observing that  Brown's real concern was
that his codefendant's testimony  was damaging to his defense, the
court noted that a defen- dant is not ordinarily entitled to exclude
testimony of a  former codefendant if the district court severed their


In the instant case, the government's evidence showed that  only two
men were at the bank. Gross and Thomas each  claimed he was not at the
bank, but neither pointed the finger  at one or more of the other
defendants. Gilliam denied any  involvement. In theory, the jury could
have accepted either  Gross' or Thomas' defense, or all three
defenses, concluding  in the latter circumstance that the government
had charged  the wrong men. By thus putting the government to its
proof,  there was no logical inconsistency in their defenses for Rule 
14 purposes. Compare State v. Kinkade, 680 P.2d 801, 804  (Ariz. 1984)
(describing codefendants' defenses as "completely  antagonistic" where
only one of two codefendants could have  committed the charged murder,
each of the two codefendants  admits being present at the crime scene,
each charges the  other with having committed the crime, and there is
no  possibility that a third party was present).


Even if appellants' defenses were mutually antagonistic,  the Supreme
Court concluded in Zafiro that a severance  under Rule 14 should be
granted "only if there is a serious  risk that a joint trial would
compromise a specific trial right  of one of the defendants, or
prevent the jury from making a  reliable judgment about guilt or
innocence." 506 U.S. at 539;  see also United States v. Moore, 104
F.3d 377, 383-84 (D.C.  Cir. 1997); United States v. Applewhite, 72
F.3d 140, 144  (D.C. Cir. 1995). As examples of serious risk, the
Court  listed the inadmissibility of evidence if tried separately,
mark- edly different degrees of culpability, or if essentially
exculpa- tory evidence available to a defendant tried alone were inad-
missible in a joint trial. Zafiro, 506 U.S. at 539. Moreover,  the
Court added that even when the risk of prejudice is high, 


less drastic measures, such as limiting instructions, will often 
suffice as a remedy. Id.


Appellants cannot show that the potential prejudice they  faced from a
joint trial rises to the Zafiro standards. Each  defendant's
culpability was separately demonstrated. The  evidence of the location
of Gilliam's wallet, his home as the  hiding place for the robbery
proceeds, and the use of his car  to carry away the proceeds, all
combine to demonstrate his  direct involvement in the robbery and its
immediate after- math. Gross' involvement in the robbery was
independently  clear from his fingerprint on the duct tape used to tie
up the  two bank employees. Thomas admitted he knew that the  money
was from a bank, and he was seen leaving Gilliam's  home with a bulky
bag and driving away with Gross in  Gilliam's car later the same
morning of the robbery. The  district court instructed the jury to
consider the relevant  evidence against each defendant separately "as
if he were  being tried alone," and further, that the conduct or
evidence  against any one of the defendants should not influence the 
jury's deliberation on the others' guilt or innocence. The jury  is
presumed to follow the court's instructions, see, e.g., Rich- ardson
v. Marsh, 481 U.S. 200, 211 (1987), and the verdicts  indicate that
the jury was able to distinguish between the  defendants, as it found
Thomas not guilty of the robbery and  s 924(c) firearms charge.


Still, appellants contend that they were seriously preju- diced by the
compromise of their right to exclude inadmissi- ble evidence:
Gilliam's letter to Thomas was admitted over  their objections as a
statement by Gilliam against his interest.  See Fed. R. Evid.
804(b)(3). However, only Gross moved for  severance based upon the
resulting prejudice; Gilliam object- ed on evidentiary grounds alone,
and he can hardly show that  the denial of a severance was plain
error. See United States  v. Olano, 507 U.S. 725, 734 (1993). Even if
the district court  erred in admitting the letter as a statement
against interest,  the government could have introduced it against
Gilliam in a  separate trial as an admission by a party opponent. See
Fed.  R. Evid. 801(d)(2); United States v. Bolden, 514 F.2d 1301, 
1311 (D.C. Cir. 1975). In any event, the jury had "indepen-


dent and substantial" evidence to convict him regardless of  the
admission of his statements in the letter. Halliman, 923  F.2d at 884
(quotation marks and citation omitted). His  wallet was found at the
robbery scene and the proceeds of the  robbery were found in his home.
Moreover, the letter, as  read to the jury, tended to exculpate Thomas
rather than  inculpate Gilliam.


As for Gross, the admission of the statements in Gilliam's  letter to
Thomas had no prejudicial effect as would require a  severance, even
though Gross maintains that while the re- dacted letter did not refer
to him, he was implicated through  its exoneration of Thomas. This is
another way of making a  claim of mutually antagonistic defenses and
is unpersuasive.  Furthermore, whether the letter would have been
admissible  in a separate trial against Gross, there was "independent
and  substantial" evidence to convict him: his fingerprint was on  the
duct tape found inside the bank. Id. Insofar as Gross  also contends
that he was denied his Sixth Amendment right  to cross-examine Gilliam
about his statements to Thomas, his  claim fails because Gilliam's
statements did not expressly  implicate him. See Gray v. Maryland, 118
S.Ct. 1151, 1154- 57 (1998); Richardson, 481 U.S. at 211; Applewhite,
72 F.3d  at 145.


Nor can Gilliam show that the district court's denial of a  severance
was an abuse of discretion by reason of the admis- sion of Gross'
testimony about Gilliam's involvement with  drugs. Although the
government has failed to point to a  permissible purpose under Rule
404(b) for admitting the  evidence in a separate trial of Gilliam, the
evidence of his  guilt was overwhelming. Moreover, the prejudice was
miti- gated to some extent by the district court's cautionary in-
structions to the jury when the testimony was admitted, and  by the
final instructions to the jury before it retired to  deliberate that
any evidence of drugs inside Gilliam's home  was to be considered only
as it related to Gross. Thus, his  claim of prejudice fails. See
Halliman, 923 F.2d at 884.


Accordingly, the district court did not abuse its discretion  in
denying appellants' motions for severance under Rule 14.


IV.


Appellants challenge their firearms convictions under 18  U.S.C. ss
924(c) and 922(g). Gilliam and Gross were both  charged with the use
or carrying of a Beretta 9mm handgun  and an Intratech .22 caliber
Scorpion Machine (semiautomat- ic) Pistol, during a crime of violence.
Under s 924(c)(1), the  use or carrying of a semiautomatic firearm
increases the  statutory penalty from a five-year to a ten-year
mandatory  sentence. Appellants maintain, in effect, that because
there  was no direct evidence that both of the masked men had a  gun,
much less that one of the guns was a semiautomatic  weapon, the
government failed to meet its burden to prove  that appellants used or
carried two guns, either as a principal  or as an aider and abettor.
Of course, the government may  meet its burden of proof by
circumstantial as well as direct  evidence. See, e.g., United States
v. Treadwell, 760 F.2d 327,  333 (D.C. Cir. 1985) (citing Holland v.
United States, 348 U.S.  121, 140 (1954)). If "any rational trier of
fact could have  found the essential elements of the crime beyond a
reasonable  doubt" based on the evidence before the trier of fact, the
 district court properly denies a motion for judgment of ac- quittal
notwithstanding the verdict. Jackson v. Virginia, 443  U.S. 307, 319
(1979); see also United States v. Harrington,  108 F.3d 1460, 1464
(D.C. Cir. 1997). Viewing the evidence,  direct and circumstantial, in
the light most favorable to the  government, as we must, see United
States v. Graham, 83  F.3d 1466, 1470 (D.C. Cir. 1996), the jury could
reasonably  find that in robbing the bank appellants used and carried
two  guns, one of which was a semiautomatic pistol.


Appellants do not contest that a defendant can be convicted  under s
924(c) on an aiding and abetting theory for his co- defendant's use of
a gun. If there is evidence from which the  factfinder may infer that
each defendant was aware that the  other was armed, then one
defendant's knowledge of the gun  may be imputed to the other
defendant. See, e.g., Harring- ton, 108 F.3d at 1471; United States v.
Price, 76 F.3d 526,  529 (3d Cir. 1996). But, here, they maintain, the
evidentiary  deficiency arises from the fact that there was no


that anyone saw a second gun during the robbery. However,  the bank
manager testified that while he was detained by one  of the masked men
he saw about two inches of a gun barrel,  akin to a handgun, protrude
from the hands of the other  masked man. The other bank employee saw
the same  masked man point a black handgun at her, threatening "don't 
move or I'll shoot you." While neither bank employee actual- ly saw a
second gun, there was circumstantial evidence that  the two masked men
had a second gun. The bank manager  testified that one of the men
pressed a hard object against his  side and threatened to blow his
brains out; the robber  warned, "you know what this is. Don't act
crazy," and when  they reached the vault, the same robber told the
manager not  to miss the combination, or he would "blow [his] ...
brains  out." Combined with the evidence that the police had recov-
ered two guns in Gilliam's home inside of the same bag as the  ski
masks and stolen cash, a reasonable jury could find that,  given the
fact that two masked men were attempting to rob a  bank, the object
felt by the manager was a gun: it was hard  like a gun and a gun was
the type of tool needed to carry out  the threat.


The absence of evidence of a direct sighting of the second  gun by
either bank employee is, therefore, immaterial. See  Treadwell, 760
F.2d at 333. In none of the cases on which  appellants rely did the
police recover the alleged gun. See  United States v. Jones, 16 F.3d
487, 490 (2d Cir. 1994);  United States v. Patino, 962 F.2d 263, 265
(2d Cir. 1992);  Parker v. United States, 801 F.2d 1382, 1383 (D.C.
Cir. 1986).  Because the object was the robbery of a federal credit
union  and one of the masked men was armed, the jury could  reasonably
infer from the threatening statements and the  discovery of both guns
that the second masked man was also  armed, with a semiautomatic. So
viewed, Gilliam and Gross  were responsible for two weapons; each
carried and used a  gun during the robbery, and each aided and abetted
his  partner's use.7 See, e.g., Harrington, 108 F.3d at 1371;  Price,




__________

n 7 Contrary to appellants' assertion, the government did not  take the
position on appeal that evidence of the use or carrying of 


Appellants' contention, raised for the first time on appeal,  that the
government should be required to prove their specif- ic knowledge
where a semiautomatic or automatic weapon is  involved is barred by
our decision in United States v. Harris,  959 F.2d 246 (D.C. Cir.
1992). Foreshadowing the Supreme  Court's reasoning in Staples v.
United States, 511 U.S. 600  (1994), this court held in Harris that
the National Firearms  Act, 26 U.S.C. s 5861(d), which makes
possession of an  unregistered automatic weapon unlawful, implicitly
requires  that a defendant have specific knowledge that a weapon is 
automatic because an otherwise law abiding citizen "who has  come into
possession of an automatic weapon ... quite possi- bly has no reason
to be aware that the weapon is a 'firearm'  within the meaning of the
statute." Harris, 959 F.2d at 259.8  But the court expressly declined
to extend such reasoning to  s 924(c) because the government already
had the burden of  proving under s 924(c) that a defendant knowingly
engaged  in criminal behavior with a firearm. See id. Thus there was 
no need for an additional element of knowledge of the specific  type
of gun because regardless of the kind of gun, the  defendant's mental
state was just as culpable. See id.


Put otherwise, and contrary to appellants' position, Harris  applied
strict liability for the type of gun used by a defendant  in
committing a s 924(c) offense. See id. at 258. Conse- quently,
appellants' reliance on Staples, in which the Supreme  Court reversed
a conviction under 18 U.S.C. s 5861(d) in the  absence of proof of
knowledge, is to no avail. Other circuits  have also held that Staples
does not extend a special mens  rea requirement to s 924(c), on the
rationale that because the  semiautomatic provision of s 924(c) is a




__________

n one of the two firearms was sufficient to support the s 924(c) 
convictions.


8 In Staples, 511 U.S. at 603, the Supreme Court reversed the 
conviction of a defendant for failing to register a semiautomatic 
weapon that had been modified to be capable of fully automatic fire 
because the jury had not been allowed to consider the defendant's 
claim that he did not know that the weapon had such automatic 


ment and not an element of the offense, a separate mens rea  need not
be proven. See United States v. Shea, 150 F.3d 44,  51-52 (1st Cir.),
cert. denied, 119 S.Ct. 568 (1998); United  States v. Brantley, 68
F.3d 1283, 1289-90 (11th Cir. 1995).  Accordingly, by introducing
evidence from which a reasonable  jury could find that appellants used
and carried two guns  during the robbery, and that the search of
Gilliam's home  revealed one of the guns was a semiautomatic, the
govern- ment met its burden of proof under s 924(c).


Gross' further contention that because the evidence indi- cates he
carried the handgun, he cannot be convicted for  aiding and abetting
the use of the semiautomatic is also  without merit. There is no
authority to support Gross'  assertion that a defendant's carrying of
a gun in a joint  robbery precludes him from being liable for aiding
and abet- ting the use of his co-defendant's firearm. United States v.
 Anderson, 59 F.3d 1323 (D.C. Cir. 1995) (in banc), on which  Gross
relies, simply states that s 924(c) does not sustain  multiple gun
convictions for a single underlying criminal act.  There is no
Anderson problem here because the government  charged both guns in the
same s 924(c) count, and upon  conviction, the district court
sentenced Gross for only the  semiautomatic weapon.


One of the challenges to a s 922(g) conviction is not so  readily
disposed of, however. Under s 922(g) it is unlawful  for anyone who
has been convicted of a crime punishable by a  sentence over a year to
possess a firearm that has traveled in  interstate commerce. See,
e.g., United States v. Jones, 67  F.3d 320, 324 (D.C. Cir. 1995).
Gross' contention that the  government failed to offer any evidence of
his prior convic- tions flounders on his admission on the witness
stand to a  prior conviction for attempted distribution of heroin and
his  counsel's statement, without dissent by Gross, to the district 
court that Gross conceded that his prior conviction qualified  as a
predicate conviction for the felon-in-possession count.  Gilliam, on
the other hand, made no such concession or  admission, and there is no
evidence that he waived his right 


to put the government to its proof. Cf. Olano, 507 U.S. at  733;
Johnson v. Zerbst, 304 U.S. 458, 463 (1938).


It is undisputed that under s 922(g), the government must  prove that
the defendant has a prior felony conviction. Here,  the prosecutor
informed the district court that he had a  certified copy of a prior
conviction of Gilliam, but never  submitted the document to the court
for introduction into  evidence. Nor at any time did the prosecutor
represent to  the district court that Gilliam had expressly agreed
that proof  of his prior convictions was unnecessary. On appeal the 
government maintains that because Gilliam did not challenge  the
prosecutor's representation that he had a certified copy of  a 1986
robbery conviction and that Gilliam had been convicted  of the three
prior felony offenses charged in count three of  the indictment, he
"essentially stipulat[ed] to this prior felony  element of the s
922(g) offense." Consequently, in the gov- ernment's view, the failure
formally to introduce the certifi- cate was not fatal.


Before hearing any evidence the district court engaged  Gilliam in a
colloquy about his criminal record. The prosecu- tor proffered that
Gilliam had prior convictions for armed  robbery, robbery, kidnaping,
obstruction of justice, assault  with a deadly weapon, and carrying a
deadly weapon. The  court inquired, "I assume you're not challenging
these convic- tions. You're not saying that these are not your prior 
convictions, right?" Gilliam answered, "[n]o, I'm not....  Not at this
time anyway." The prosecutor did not offer into  evidence at the bench
trial on the felon-in-possession count  any documentary or other
evidence to prove that Gilliam had  the requisite prior convictions.
Recalling perhaps that the  district court had engaged Gilliam in a
pretrial colloquy about  his criminal record, the prosecutor
apparently failed to recall  that in responding to the district
court's inquiry Gilliam gave  a qualified denial, leaving open his
option to challenge his  prior convictions at a subsequent time. Thus,
in the absence  of waiver or an admission by Gilliam, there was no
evidence  before the court to prove Gilliam's prior record.


Although the government relies on Gilliam's silence in  failing to
challenge his prior convictions, the burden remained  on the
government to offer into evidence proof of every  element of the
charged offense. While it could have done so  by a stipulation with
the defendant or by a waiver by the  defendant of his right to put the
government to its proof,  neither occurred here. Cf. Old Chief v.
United States, 117  S.Ct. 644, 653 (1997); Olano, 507 U.S. at 733
(quoting John- son v. Zerbst, 304 U.S. at 463); Jackson v. Denno, 378
U.S.  368 (1964). The government's reliance on United States v. 
Hardin, 139 F.3d 813 (11th Cir.), cert. denied, 119 S.Ct. 225  (1998),
and United States v. Branch, 46 F.3d 440 (5th Cir.  1995), in which
the defendants had entered into stipulations  with the government on
an element of the crimes charged, is  misplaced. Indeed, even if there
had been a stipulation, the  government may well still have needed to
introduce the  stipulation into evidence, for as the Ninth Circuit has
ob- served, whether there is a stipulation between the defendant  and
the government, if it is not offered in evidence there is  "no fact in
evidence that the [trier of fact] could take as  proved." United
States v. James, 987 F.2d 648, 651 (9th Cir.  1993); cf. United States
v. Muse, 83 F.3d 672, 678-81 (4th  Cir. 1996). Because there was
neither a stipulation nor other  waiver by Gilliam, nor proof by
introduction into evidence of  the certified copy of his prior
conviction, the government  failed to present evidence on an element
of the s 922(g)  offense. See Estelle v. McGuire, 502 U.S. 62, 69


By contrast, Gross' challenge to his conviction for carjack- ing, on
the ground that because the bank manager was away  from his car at the
time he was assaulted by the robbers,  there was insufficient evidence
to convict him of carjacking  under D.C. Code s 22-2903 (1981), fails.
A carjacking occurs  so long as the victim is in immediate actual
possession of the  vehicle. See Pixley v. United States, 692 A.2d 438
(D.C.  1997). "Immediate possession," an element borrowed from  the
crime of robbery, see Pixley, 692 A.2d at 440, is retained  if the car
is within such range that the victim could, if not  deterred by
violence or fear, retain actual physical control 


over it. See, e.g., Spencer v. United States, 116 F.2d 801, 802  (D.C.
Cir. 1940); Rouse v. United States, 402 A.2d 1218, 1220  (D.C. 1979).
Although the bank manager had stepped out of  his car to unlock the
parking lot gate, he left the car running  with the driver's door
open. The jury could reasonably find  that the bank manager intended
to get back into his car to  park it in the credit union lot once he
had opened the gate,  but the robbers prevented him from doing so, and
thus  deprived the manager of immediate possession of his car. As  for
Gross' contention that he never intended to steal the car,  the
statute does not require that the government prove  specific intent to
steal. See Pixley, 692 A.2d at 439-40; see  also Allen v. United
States, 697 A.2d 1, 2 (D.C. 1997).


Thus, the district court erred only in denying Gilliam's  motion for
judgment notwithstanding the verdict on the  s 922(g) charge.


V.


Finally, appellants attack their sentences. Insofar as  Gross contends
that the district court erred in sentencing him  to a consecutive
ten-year term for the use or carrying of a  semiautomatic weapon in
violation of s 924(c)(1), this is an- other way of claiming that there
was insufficient evidence to  convict him for the use or carrying of
the semiautomatic  pistol, and hence his contention is without merit.
Gilliam, on  the other hand, contends that the district court erred in
 imposing two life sentences under the "three strikes" statute,  18
U.S.C. s 3559(c),9 because the government failed to prove 




__________

n 9 18 U.S.C. s 3559(c) provides in relevant part:


(1) ... a person who is convicted in a court of the United  States of a
serious violent felony shall be sentenced to life  imprisonment if--


(A) the person has been convicted (and those convictions have  become
final) on separate prior occasions in a court of the  United States or
of a State of--


(i) two or more serious violent felonies.


that he had at least two prior predicate convictions for serious 
violent felonies.


Gilliam first maintains that in view of the severity of the  penalty
under the statute, due process requires the district  court to hold an
evidentiary hearing before imposing a man- datory life sentence. The
three strikes statute incorporates a  notice requirement from the
Controlled Substances Act, 21  U.S.C. s 851(a), requiring the
government to give the defen- dant formal notice in an information of
the defendant's predi- cate convictions on which the government
intends to rely in  seeking the imposition of life imprisonment. See
18 U.S.C.  s 3559(c)(4). The government gave Gilliam such notice. 
However, other provisions of the Controlled Substances Act,  namely ss
851(b) and (c), require the district court to ask the  defendant to
admit to or deny his prior convictions, and upon  a denial, the court
must conduct an evidentiary hearing in  which the government must
prove the convictions beyond a  reasonable doubt. 21 U.S.C. s 851(c).
Gilliam contends that  the statute should be read to incorporate some
of the addi- tional due process requirements of ss 851(b) and (c).10


There is, however, no authority to support Gilliam's conten- tion, and
the Tenth Circuit has rejected it, concluding that  "[t]he fact that
the defendant does not concede the existence  or seriousness of former
convictions does not automatically  require a separate section 3559
hearing." United States v.  Oberle, 136 F.3d 1414, 1424 (10th Cir.),
cert. denied 119  S. Ct. 197 (1998). "Rather, it is only when a
defendant 




__________

n 10 Gilliam stated in a footnote of his brief that although due 
process "arguably" "may well require" a higher standard of proof  than
a preponderance of the evidence as well as an evidentiary  hearing
where the sentence enhancement under three strikes im- poses a
punishment greater than the maximum sentence authorized  for the
offense of conviction, he concluded that the court "does not  have to
address this issue" "because the government failed to prove  Mr.
Gilliam's prior convictions by even a preponderance of the  evidence."
He never directly argued that meeting the preponder- ance standard is
insufficient, and the court will not construe the  briefs to raise an
argument that is hinted at but never stated. Cf.  United States v.
Whren, 111 F.3d 956, 958 (D.C. Cir. 1997).


tenders evidence to deny the seriousness of the former con- victions or
to deny that the prior convictions pertained to him  or her that the
district court must conduct a hearing." Id.  Even assuming ss 851(b)
and (c) were applicable, Gilliam  made neither a tender nor a denial
that would trigger an  inquiry. Before sentencing, Gilliam and his
counsel received  the presentence report setting forth Gilliam's prior
convic- tions, and acknowledged that the report did not contain any 
material factual inaccuracies.11 In a memorandum in aid of 
sentencing, counsel asked only for consideration of Gilliam's  mental
condition. At sentencing, Gilliam's counsel stated,  "[a]s the court
[is] aware, there's very little I can say in this  case, given the
papers filed by the government and given Mr.  Gilliam's convictions."
Under the circumstances, even if Gil- liam's statements did not
constitute a waiver, his actions  amounted to forfeiture and we find
no plain error. See  Olano, 507 U.S. at 732-33. Because "[a]ll that
[Gilliam] did  was to put the government to its proof," Oberle, 136
F.3d at  1424, the district court could properly rely on the factual 
statements in the presentence report.12 See Fed. R. Crim. P. 




__________

n 11 Among the convictions noted in the presentence report was a  1971
kidnaping conviction and a 1986 armed robbery conviction, for  which
Gilliam received 6-18 years. Under subsection (2)(F)(i) of  the three
strikes statute, kidnaping qualifies as an enumerated  serious violent
felony. Under subsection (2)(F)(ii), armed robbery  qualifies as a
predicate offense "that by its nature, involves a  substantial risk
that physical force against the person of another  may be used in the
course of committing the offense," and is  punishable by a maximum
term of imprisonment of 10 years or  more.


12 Although the presentence report can resolve the three- strikes
sentencing issue, it cannot provide the necessary element of  s 922(g)
because it was neither acknowledged nor prepared prior to  Gilliam's
conviction for the offense. As to Gilliam's counsel's state- ment
during oral argument in this court that there may be an issue  of
identification as to one of Gilliam's prior convictions, in the 
absence of any relevant record on appeal, such a claim must be 
presented initially to the district court. See, e.g., Oliver v. United
 States, 335 F.2d 724, 726 n.2 (D.C. Cir. 1964).


32(b)(6)(D); Washington, 115 F.3d at 1010; United States v.  Booze, 108
F.3d 378, 381-82 (D.C. Cir. 1997); cf. United  States v. Hill, 131
F.3d 1056, 1065 (D.C. Cir. 1997). Hence,  the district court did not
err in accepting the presentence  report as meeting the government's
burden to prove that  Gilliam had two predicate convictions under s
3559(c). Cf.  Oberle, 136 F.3d at 1424.


Accordingly, because the government failed to introduce  evidence on an
element of the offense, we reverse Gilliam's  conviction under 18
U.S.C. s 922(g), but in view of evidence  presented in connection with
sentencing, we affirm his life  sentences; otherwise we affirm the
judgments of conviction.