*2 GARTH, merged only can be sentenced and HIGGIN- Before ROSENN BOTHAM, Judges. under Counts I II. Circuit once THE OF COURT OPINION I. HIGGINBOTHAM, Jr., A. Circuit LEON 22, 1979, bloody night February in a On Judge. *3 terror, forcibly of three assailants armed 27,1981, twelve-person On August Villa Number at the Reef Con- entered Six the Dis- sitting in the Croix Division of St. Croix, The Virgin Islands. dominium St. Virgin the found trict Islands Court m. and a approximately time was 12:40 a. de- Joseph guilty of one count first Shelly woman gang rapists and found a thieves gree assault, degree rob- three counts first who just at home alone showered degree rape. count first Dis- bery and one going Sneaking up preparation for to bed. Finch, sitting Judge Raymond T. trict Court woman, lie they the ordered her to behind Sep- Joseph on designation, sentenced floor, keep eyes the her face down on to the years to fifteen tember make not look at her assailants or shut and rape con- years and ten to be served count any sound. counts. remaining on each of the secutively placed against A was the side her gun the timely appeal filed a notice of to she was and bound gagged head while judgment court’s and commitment. district Repeated and beat- hand-and-foot. threats challenges four to his con- Joseph raises while her ings were administered to her First, appeal. viction and sentence this being was ransacked. satisfied home Not per- he that the trial erred in argues court and of cash jewelry with the small amount mitting testify a witness to that she saw Six, of the found at Villa Number two gun prior car to several months her bed lifted the victim to assailants bound Second, the he it was crime. asserts raped, was and threat- where she tortured counsel for to error to allow a co-defendant a knife was repeatedly. Finally, ened Joseph gave testify regarding confession placed at her throat was covered and she Third, alleges that his attorney. the he she was told that if she moved a sheet. She for a new trial have been motion should then be killed. Her assailants would documents, of- granted certain since her further search slipped out of home in were inadvert- fered into evidence money.” big “the jury during the their delibera- ently sent to Six, three leaving Upon Villa Number argues Finally, tion. he that his sentence and Villa Num- the street entered crossed he improper was as received consecutive men, They two Thirty-Six. found there ber assaulting robbing the sentences Af- seven-year-old boy. and a two women person. same terrorizing beating the villa’s ter owner oral ar- considering After the briefs and people present, the assailants all of the case, gument in we this have concluded fled occupants. The intruders bound We is entitled a new trial. appellant telephone rang and one after appel- do reversible not find error in the called heard one of the assailants victims However, allegations. de- lant’s first two departing, like Before a name “Shaboo.” appel- spite against the substantial evidence $1,000.00 took in cash the intruders about lant, are convinced that the submission we items number of such as cameras and a documents, not of two critical jewelry. record, highly prejudi- was admitted of so two officers on police of a fair The were called and deprive appellant cial as to broadcast, patrol, hearing radio agree appellant after trial. We also usually speeding along a road improperly spotted sentenced to consec- a car that he was night In an effort II of the of late traffic. terms under Counts I and devoid utive roadblock, pulled their view, police as- appellant’s up In our set information. speeding Savage patrol are car across road. robbery of Michael sault and government’s counts of the police car car and careened information struck off pursued road. The officers August the occu- filed pants of they the car as fled but failed to anyone. catch One officer that he believed II. recognized fleeing one of the individuals as ground ap Appellant’s first Richard Motta. peal Chris relates Lisa against The evidence at trial introduced tiansen. Mrs. Christiansen was a friend Shelly Joseph overwhelming. The Joseph who a government was called as Chevy abandoned auto was a 1974 two-door witness and testified that she a black saw registered Joseph. Property Nova stolen gun under seat of car. Jo from two villas was in the car found as objected attorney seph’s her guns well being as identified as used but overruled. The district court relied fitting description crimes. A vehicle on Rule 404 of the Federal of Evi Rules *4 Joseph’s car was observed in the area of the Robinson, dence and United States v. 560 Reef prior to Condominiums the crimes. (2d denied, 1977), F.2d 507 cert. Cir. 435 rape Seminal stains found on the victim’s 905, 1451, 98 55 U.S. S.Ct. L.Ed.2d 496 panties type Joseph matched the blood of (1978),1for the proposition that of evidence and Joseph frequently went the nick- Joseph’s prior possession a gun of was rele name Finally, immediately Shabu. after vant to show the to opportunity defendant’s place, the crimes Virgin took left the robbery. commit armed On cross-examina stay Islands to grandmother with his in tion, Ms. Christiansen not able conclu was Antigua, British West Indies. sively identify guns to either of the two Charges against Shelly Joseph were filed in Chevy found the abandoned Nova as persons, two other of one whom was being the gun same she saw under the car’s Richard engaged attorney Motta. Motta seat earlier. Edward Ocean to him represent and Ocean 404(b) Rule of pro- of the Rules Evidence flew to Antigua to meet with Joseph. Be- vides: Croix, leaving given fore St. Ocean was a crimes, (b) wrongs, Other or acts. Evi- of letter introduction from Reverend Vera crimes, dence of other or wrongs, acts is Woods. It was this letter and the subse- prove not admissible to the character of
quent confession, signed by Joseph, excul- person in order to in show that he acted pating inadvertently Motta which were sent however, conformity may, therewith. It jury although neither was introduced purposes, admissible for other such as as evidence at trial. was arrested motive, intent, proof of opportunity, in Antigua authorities and extradited to preparation, plan, knowledge, identity, or St. Croix. government eventually The dis- absence of mistake or accident. charges against missed all Motta and the other noted, co-defendant. As previously 404(b). Advisory Fed.R.Evid. The of *5 and spirit that violates the ra- Joseph was not at verend letter. Wood’s privi- attorney-client behind the tionale and left the letter his hotel home so Ocean we Appellant’s Brief at 10. As un- lege.” grandmother. Later address with appellant’s argument, the he is derstand afternoon, that Joseph was told that Ocean advocating adoption what is the com- They for him. met looking was called the rule. monly “common defense” and moved into a hotel’s restaurant then private room. rule, support of the common defense cases, Hunydee relies two Joseph Joseph that clearly
Ocean
advised
he
States,
1965)
(9th Cir.
United
Appellant’s reliance on McPartlin help his friend and co-defendant misplaced. case is Motta. likewise To that case a accomplish purpose business-persons number it is and not unreason- city offi- able cials to infer that the appellant were indicted for participating in a intended his bribery scheme statement be involving the shown to the city award of authorities. We trial, Prior contracts. to two of the defend- decline to attorney-client extend the privi- ants they lege realized shared a common to a situation where the defendant did attacking interest credibility of a not intend confidentiality and made his particular witness. With the consent his wholly statements divorced from an attor- counsel, the first defendant met with an ney-client relationship. investigator by employed the other defend- attorney.
ant’s investigator The and attor- IV. ney believed that the first defendant made On day Joseph certain was to sen supported statements which tenced, his counsel second moved for new trial on defendant’s defense. When the grounds second that two documents not attempted defendant to admit introduce trial, ted inadvertently these statements into evidence had the first defend- been objected grounds ant on the sent they jury. were to the His motion was reduced privileged judge writing days 21, communications. The trial five September later on objection sustained the and the Seventh 1981 on and amended October 1981. The think it fair. I Charge and Idonot is motion for a new denied trial court will feel Heart & Conscience your 1982.3 think January trial me that none you told clear. Remember reaching the improperly item The first therejand were thats of Mr.Mottas Sons statement, reduced to nothing more I and I had just what said by Joseph, writing by Ocean say. The state- Antigua. given in which was the truth speak stated: expecting you 13 and I am as Exhibit ment was marked come back St.Croix. you cannot since June I, Attorney told Joseph, have Shelley challenge the does not government The February happened what was introduced that neither document fact the Reef reference to and 22 of 1979 with to the both were submitted at trial and that Rape-Robbery-Assault Condominium that the They argue consideration. jury were That there condominium units. two properly denied a new trial was motion for crime, and involved in the three of us or waived the error was harmless because three. one of the Motta was not Richard object. We disa- failure to due to I had a misunder- Motta and Richard conten- government’s of the gree with both Febru- days before two or three standing of these that the submission tions and. hold 22,1979 with him I have not been ary as to de- was so two documents me since that misunderstand- or he with a fair trial. right his prive Joseph of by me was last seen ing. Richard Motta waiver ar- government’s The basis other fellows saw him with three when I moved prosecutor when the gument is that fellows joined in with two other before I noted two ex- evidence he exhibits into his Reef incident. regarding the encompass either which did not ceptions Shelley Joseph Exhibit 13 had been 13 or G. Exhibit Since letter written item was the second counsel, govern- marked defendant’s before given to Ocean Reverend Woods and by counsel to that the failure ment reasons as was marked Antigua. It he left for object constituted the exhibits and to check read as follows: Exhibit G and prose- and the Both the defense a waiver. in Jesus name. Greeting you inadvertence that it was sheer cution assert Ocean,whom I Friend,Attorney This is a not removed from the two documents you here to do No sending you;he am is jury. received the exhibits Harm,but him the whole Truth please tell perfectly plain “It you would this matter. You said about evidence not kept free of room must be it is known that be afraid for me if presence, that its during received mind for I donnot you. came to look Dal the verdict.” will vitiate Son,Ri- prejudicial, if Mr.Motta I mind for myself,but *7 546, States, F.2d 553 427 lago United chie;who v. in the Car you told me wasnot omit- and citations (D.C.Cir.1969) (footnote him into brought have you.They appeal motion, despite a notice of the fact that Joseph’s new trial motion 3. We believe had al newly Joseph’s and sentence conviction ground evi from discovered based on the dence, ready of the Vir timely filed. See Government filed under Fed.R. been and hence was 1103, Josiah, (3d Gross, 1105 gin 641 F.2d v. v. 614 Islands Crim.P. 33. See United States Ellison, 1981); Cir.) curiam) (implying 557 F.2d (3d (per States v. that United F.2d 365 Cir. denied, 965, 128, (7th Cir.), 434 U.S. jury cert. improper 132 influence on the evidence of 504, (1977); evidence”), 450 Richard “newly 54 L.Ed.2d 98 S.Ct. constituted discovered cert. 366, States, (5th 925, 3019, denied, F.2d 368 Cir. 360 65 L.Ed.2d son v. United 447 U.S. 100 S.Ct. may 1966). Moore, we con (1980); also satisfied that We are 8A J. Federal Practice 1118 1981). motion for a new (2d denial of sider the ¶33.07, ed. But see at 33-55 Gereau, appeal part his conviction Virgin of the from trial as Islands v. Government of sentence, notwithstanding 441, 603, no 438, (3d the fact that 609 Cir. 603 F.2d 16 V.I. appeal improper pres separate was filed from 1979) (motion raising notice issue of denying v. See United States jury the motion. placed sev order must be made within sures on 120, 1967); (3d such, Bujese, Rich verdict). 371 F.2d 123 Cir. days As the district en after the States, supra, deny at 369. 360 F.2d jurisdiction v. United ardson court had to entertain 864 that
ted). responsibility testimony has been included in the ordinarily It is However, counsel concurring opinion. to check the exhibits and failure the concur- object timely a manner can under some ring opinion that, at fails to note circumstances a waiver. United constitute denying was as vehement Burket, 568, (2d v. 480 States F.2d 571 Cir. meeting there was a as Ocean was assert-' 1973); Strassman, v. 241 F.2d States ing meeting that a place. took testi- 784, (2d 1957). 786 As Cir. our court recent fied that he had “never met with Ed wrote, ly the exhibits were not intend “[i]f Ocean,” and had never seen him at all be- ed or parties the court to remain in morning fore Ocean’s of the evidence, actually or were not admitted into App. at 307. trial. Where there was such a evidence, appellants object now cannot complete factual about contradiction presence they their room unless the meeting place, certainly whether took a ‘plain can show that committed court jury could have believed either Ocean or ” Friedland, error.’ United States v. 660 Joseph. There is no in our a rule court that denied, 919, (3d 1981), F.2d 928 cert. greater prosecution witness entitled to - -, 2268, U.S. 102 S.Ct. 73 L.Ed.2d credibility testifying than defendant (1982). 1283 The standard for plain error his or her own behalf. With this clash of is whether “the evidence was so testimony, missing link to corroborative defendant was denied fair trial.” supplied Ocean’s the let- (citations omitted). Id. stated, ter. It black and white for the read, to see and that Ocean and appel
We have concluded that the 14, “I, plain lant has met error had met on June standard. Un doubtedly, Shelley Joseph, Attorney defendant’s counsel have told should have However, carefully February checked each what happened exhibit. 21 and 22 of prosecutor, who was under the same 1979 with reference Reef Condomini- care, duty neglected likewise Rape-Robbery-Assault to exclude um in two condomin- the improper documents when he reading moved ium units.” Prior this written them highly prejudicial jurors into evidence. The might statement some have nature of a confession and a letter be reasonable doubt whether Ocean should from a minister cannot be doubted. Ocean believed. But with the written statement testified about jury, beyond circumstances his before the can we say a rea- meeting provided and the statement uns sonable doubt that it was not the last straw hakeable ultimately corroboration that would com which contributed to the crum- pletely bling fragile undermine efforts to credibility chal foundation of lenge credibility. Ocean’s on which defense rested? Furthermore, respectfully disagree pattern
We
with the
the factual
here is
opinion
concurring
totally
to the extent
it
distinguishable from cases such as
Florida,
the potential
impact
427,
minimizes
which the
Schneble
405 U.S.
S.Ct.
written
(1972)
“confession” or statement
could
865 ” an committed lesser Green improp- thority proposition for the [the offense].’ statement, 160, 440, 16 idge, quoting written corrobo- 600 F.2d V.I. at erly submitted rating testimony at constitutes Virgin Aqui oral Islands Government of no, 395, (3d harmless error. 378 F.2d V.I. 421 6 Cir. 1967). To whether offense is determine Woods, Reverend it As to letter from necessary lesser it is examine included society is still the case in our members statutory provisions. relevant great respect and clergy of the are accorded testify did deference. Reverend Woods 291(2) Virgin Islands Section Code placed Joseph at the Her letter in the trial. defines assault as follows: car, it corroborated Ocean’s Whoever— (which challenged), high- and it Joseph had lighted fugitive by status as a ac- (2) threatening gesture show- makes a that he could not return to knowledging St. ing in intention itself an immediate cou- Finally, Croix. the letter referenced an a pled ability with an to commit bat- obvious between Reverend conversation tery an assault. inescap- Woods from which —commits turn, present 295(3), provides able conclusion was that that: Section thereby for the knew crimes and that Motta Whoever— a was not. We will not find waiver when is parties both are at fault and (3) rape, with intent to commit sod- can highly say so that we larceny, or omy, mayhem, robbery as- fair confidence the defendant denied a another— saults trial.4 guilty in the first degree. is of assault robbery V. in the 1862(2) defines first Section degree and states that: Finally, argues that it was appellant robbery person guilty A judge error for the trial to sentence him to is when, degree first in the course of the under Counts and II of consecutive terms alleged commission the crime or of the information. Count I that Jo- immediate 295(3) therefrom, perpetra- seph flight he or another violated 14 V.I.C. assault- § tor of the ing Savage with the intent crime: Michael to com- robbery. alleged mit II violation Count (2) or threatens the use Displays, uses 1862(2) of 14 in that V.I.C. robbed § dangerous of a weapon. Michael Savage by means force or fear provisions reading statutory Our of the
by displaying threatening or to use a dan- set out above indicates that defendant gerous weapon. “Displays, who or threatens the uses use reading of the the course dangerous weapon” during
Our statutes of a question supports degree robbery necessarily and the relevant cases first must I and appellant’s guilty view that Counts II of the of assault as defined 291 and §§ 295(3). Greenidge merge. information Prince v. words of the See States, 403, 1 court, robbery 352 77 L.Ed.2d it is to commit impossible U.S. S.Ct. (1956); degree committing Virgin Is the first without first Government Reviere, (3d Reviere, 1982); degree. lands v. F.2d 453 assault in the our Cir. first relationship Virgin Islands between Government of the Green court addressed idge, 437, 16 (3d assault 1979). Virgin robbery V.I. 154 sec- F.2d Islands assault “Generally, open is a lesser tions but whether an offense included left robbery. ‘impossible offense lesser offense to How- only if it is commit included ever, “it is a greater having without fair offense first court indicated government’s without 4. The contention that letter merit. from Reverend Woods was harmless error is *9 injustice grievous simply the because there was inference that assault with intent to rob provision pointing was to cover the situation an evidence the enacted abundance of person where a assaults another with intent guilt. defendant’s rob, prevented completing but from again case once that This demonstrates crime.” 670 the F.2d at 455 n.2. We now neither counsel nor the clerk can be casual open by decide the question left Reviere about the to the submission documents 295(3) and conclude that constitutes § jury; procedure instead this must be 1862(2) lesser included offense when § out as as meticulously any carried other all the elements of both are offenses com- paused the course of a trial. If counsel had against mitted the same individual. and carefully checked each document before jury its final to the submission for VI. deliberation, latter’s a new trial would not We are not unmindful the fact that required recog- have been in this case. We this replete record is with substantial evi- pressures escalating judges, nize the on trial against dence It Joseph. surprising is not personnel with lawyers court move jury that guilty found of these him dispatch finishing expedi- case each as vicious crimes. We recognize also that the Nevertheless, tiously possible. as is a there cruelty of these crimes shock would point where or makes haste casualness Yet, sensitivity any person. civilized our substantial, though waste. Because inad- jurisprudence American demands that even vertent, errors unnecessarily commit- egregious the most offender is entitled to ted, we are left with no alternative but his impartial have or her fate decided an order a new trial. jury, further, jury will have Having that the concluded submission judgment solely based their properly Joseph’s statement and the letter case, admitted evidence of record. In this from Reverend Woods was so as jury permitted to take with them appellant deny fair we will re- to the jury room damaging documentary verse and remand this case to the district evidence not admitted into the record. Be- court a new trial. cause the evidence jury taken to the room thoroughly implicated so the appellant, we GARTH, Judge, concurring Circuit cannot be certain whether this unadmitted part concurring judgment. awas decisive factor the jury’s majority despite holds the dis- They may deliberation. have decided this jury closure to the of Joseph’s oral confes- adversely case appellant to the primarily through sion Ed- witness because of the signed confession and the Ocean, Joseph’s ward fact written letter from Reverend given Woods to them inadvertently statement was sent to the for their final deliberation. recognize We exhibit, jury as constitutes reversible these documents the jury reached error, together error. This im- through inadvertence, and that neither the proper jury submission to the of the Woods prosecutor nor counsel for the defendant or letter, majority is held to mandate a deputy clerk of court knew that reversal of conviction. these during documents delibera- But, agree jury’s exposure tion. even While that the though this incident was inadvertence, caused Woods letter must result in a trial administrative new Joseph, appellant’s process agree I do not right jury’s due of law is not to be receipt denied him simply may because he written statement would guilty or require because the the same result. submission to the Nor would I hold of unadmitted evidence was that the district inadvertent. court was correct in admit- A confronting defendant 55 years prison ting respect- Lisa Christiansen’s finds no ing gun solace in fact that he she saw in two car inadvertence, denied due process by and our months before the here crimes reviewed jurisprudential system cannot tolerate such were committed. *10 raping her under another Joseph admitted
I.
James while the other two men
threat from
opinion, the written statement
my
In
apartment
money, jewelry,
searched
together
sent to the
room
which was
drugs.
proceeded
and
The three then
exhibits,
error,
none-
while
with other
apartment
they
up
second
where
tied
and
de-
Attorney
harmless.
Ocean’s
theless
occupants.
robbed
Joseph’s oral
testimony concerning
tailed
crimes,
having
committed the
confession
making
Joseph told Ocean that while
harm-
insignificant any
rendered
additional
Condominium,
from the Reef
getaway
their
ful
that
written statement
impact
thought was a
Joseph
past
drove
what he
have had
brief
jury.
could
on
roadblock,
later lost control of his
police
but
view,
constituted, my
in
written statement
three men
and went off the road. The
car
harmless cumulative evidence and
merely
Joseph
stayed
said he had
separated.
then
have influenced
independently
could not
weeks after
for two to three
in St. Croix
jury’s verdict.
leaving
incident before
island.
the Reef
all,
testimony cover-
In
Ocean’s transcribed
proposition,
an abstract
Although as
pages.
nearly forty
ed
case,
agree
facts of this
can
related to the
nature of a
highly prejudicial
that
statement,
contrast, Joseph’s
written
“[t]he
doubted,”
signed confession ... cannot be
reproduced
majority opinion
in the
which is
reviewing
at
the cir-
Maj. op.
sentences
of four
page
consisted
case,
clearly
of this
it is
evi-
cumstances
and
in two
handwritten
Ocean
added
dent that
written statement
essence,
by Joseph.
the statement
places
damaging
testimony.
little
to Ocean’s
(1) Joseph
that
told
did no more than reveal
concerning his
length
Ocean had testified at
happened
February
“what
and
Ocean
Joseph
which
admit-
trip Antigua during
Condominium,
Reef
but
22 of 1979” at the
at the
ted his involvement
in the crimes
details; (2)
giving any
that
three
without
to the
repeated
Reef
Ocean
Condominium.
involved,
but that Motta
individuals
Joseph had told
great
detail what
them; (3)
days
that a few
was not one
were committed.
him about how the crimes
22, Joseph and Motta had
February
before
(4)
misunderstanding;
Joseph
and
him that
Joseph
testified that
told
Ocean
people prior
seen Motta with other
had last
O’Reilly were in-
Lorne James and Anthon
statement,
incident. The
to the Reef
Reef crimes. Jo-
Joseph
volved with
into
Joseph, was never admitted
signed by
seph
very good
that he was a
told Ocean
evidence,
read to the
nor were its contents
Motta’s and knew
friend of Richard
inadvertence, however, the
Through
jury.
days
four
family
Motta
but that
three or
the other ex-
was included with
statement
the Reef incident he had had a “fall-
before
jury room.
that were sent
to the
hibits
and,
ing
consequence,
with Motta
as a
out”
James, and
Joseph,
Motta was not with
comparing
gone
I have
into some detail
O’Reilly
night
of the crimes.
testimony, which has been sus-
Ocean’s
appeal,
summary
in this
with the
tained
night,
Joseph told Ocean
signed by
statement written
Joseph,
money
had had no
that, com-
in order to demonstrate
Joseph,
James,
with James
under threats from
went
testimony, which
pared
in-depth
to Ocean’s
to the
O’Reilly
and'
Reef Condominium
crime, Joseph’s
related all facets of the
first
Joseph said the three
Joseph’s car.
Indeed,
significance.
had little
pick up statement
drove to James’s residence to
had to do with
the thrust of the statement
to mean
interpreted
“tools” —which Ocean
Motta’s,
Joseph’s, involve-
only
rather than with
claimed that
guns
and masks.
emphasis
crimes. This
time of ment in the
O’Reilly
guns
James
at the
be-
completely understandable
wore a handker-
statement
the crime and
Joseph not to
had interviewed
face.
cause Ocean
part
chief over the lower
of his
Once
to exon-
against Joseph but
Condominium,
gather
entered
at the Reef
all three
has attrib-
majority
Yet the
woman.
erate Motta.
apartment
inhabited
a lone
*11
Florida,
427,
Joseph’s conclusory
uted to
in-
In Schneble v.
405
92
statement
U.S.
1056,
(1972),
31
340
which,
police-
S.Ct.
L.Ed.2d
a
Motta
if
volving
importance
an
not
man testified at
the defendant’s trial
placed in proper perspective, might serious-
a
The
by
statements made
co-defendant.
ly affect the manner in which future courts
co-defendant did not take
stand and
may regard an issue
as the one here
such
thus was not available for cross-examina-
presented, as a precedent.
challenged
police-
tion. The defendant
I do not believe that we must
conclu-
give
man’s
of
v.
as violative
Bruton
weight
examining
sive
to writing,
a
without
States,
123,
1620,
391
88
U.S.
S.Ct.
in
case-by-case
detail and
the context
(1968),
III. indicated,
As I have I fully concur
majority’s of Joseph’s reversal conviction
and in its direction that be tried only write separately express
anew.
my disagreement majority’s appli- with the
cation of the harmless-error doctrine and interpretation
with its broad of admissibili-
ty 404(b). of evidence under Fed.R.Evid. positions
These majority, taken al-
though necessary judgment to its
reversal, may have unfortunate conse-
quences in future cases in which similar
questions may arise. *13 ELECTRONICS,
WILLIAMS INC. INTERNATIONAL,
ARTIC
INC., Appellant.
No. 81-2407. Appeals, Court States
Third Circuit.
Argued May 1982. Aug. 2,
Decided 1982.
Rehearing
Aug.
Denied
Notes
Joseph was tried and
on all
convicted
five Committee on Proposed Rules indicate that
Robinson,
the Second Circuit affirmed
in this
case
since Christiansen could not
trial
positively
gun
court’s decision to admit evidence that the
saw
match the
she
under the car
possession
guns
defendant was in
of a .38 caliber
seat with the
found in the car after it was
handgun
abandoned,
on
when arrested
the basis
it
that was
her
should have been
probative
opportunity
participate
of his
agree,
in
prior
We
excluded.
do not
since the
robbery
question.
the armed
The
possession
gun
opportu
court em-
of a
can be relevant
phasized
duty
weighing
pro-
that “[t]he
nity
subsequent
up
matching
even without
gun-at-arrest
bative
value
gun
with the one
used
the crime. See
against
squarely
its
effect
Ravich,
rested
on
(2d
United States v.