Aftеr his first jury trial ended in deadlock, defendant Raymond J. Gary (“Gary”) was convicted by a second jury of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). He was sentenced to over twenty-four years incarceration as an armed career criminal pursuant to 18 U.S.C. § 924(e).
Gary raises six issues on appeal: (1) whether the district court violated his Sixth Amendment right to compulsory process by precluding him from calling a defense witness who would provide exculpatory information on direct examination but would assert the Fifth Amendment with respect to non-collateral issues on cross-examination; (2) whether the district court erred in finding that this defense witness had not waived his Fifth Amendment privilege against self-incrimination by virtue of his testimony at the first trial; (3) whether the government properly sought authorizаtion to prosecute under the U.S. Justice Department guidelines regarding dual federal-state prosecutions (i.e., the “Petite policy”); (4) whether Gary was selectively prosecuted on account of his race; (5) whether Gary received a fair trial in light of the government’s reliance on what he contends was “perjured testimony by a law enforcement official”; and (6) whether the district court misapplied U.S.S.G. § 4B1.4 in determining Gary’s total offense level. 1 We affirm the conviction and sentence.
I. STATEMENT OF THE CASE
A. FACTS
We set forth the evidence in the light most favorable to the verdict.
United States v. Tuesta-Toro,
On May 14, 1994, Gary and a friend, Eric Hopkins, spent part of the evening going to nightclubs. After midnight, Patrolman James Joseph Corry of the North Providence Police Department encountered Gary and Hopkins when they were attempting to break into Rhode Island Auto Rаdio. Earlier that evening, they had stolen some vases from a furniture store elsewhere in North Providence. Upon seeing Corry, Hopkins fled on foot and Gary attempted to escape by car at high speed. Gary lost control of the vehicle, which left the road and struck the foundation of an adjacent building. Corry caught up to Gary as he was attempting to exit the wrecked automobile. Gary resisted arrest, and the efforts of several officers were necessary to subdue him. Once the officers successfully apprehended Gary, they conducted a “pat-down” search for weapons. At that time, a loaded and fully-operable Colt .25 caliber handgun fell from Gary’s waistband. Hopkins also was arrested, and a Dickson .25 caliber semi-automatic pistol was seized from him. Hopkins later admitted to possessing the firearm.
B. PROCEEDINGS BELOW
Gary and Hopkins each were initially charged in state court with violations of the Rhode Island General Laws. 2 On June 9, 1994, a federal grand jury returned an indictment charging both with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). On August 31, 1994, the government filed a notice that, if Gary was convicted, it would seek a penalty enhancement pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). Hopkins pled guilty, on September 8,1994.
From October 13 to 17, 1994, Gary was tried by a jury before Judge Raymond J. Pettine. Hopkins, who was represented by counsel, testified on Gary’s behalf and was *308 cross-examined by the government concerning the break-ins, the circumstances of the arrest, and the firearms. The proceedings ended in a mistrial when the jury announced that it was unable to reach a verdict.
Gary’s case then was transferred to Judge Mary M. Lisi, before whom the second jury trial commenced on October 25, 1994. When Gary attempted to call Hopkins to the stand, however, the government objected on the grounds that Hopkins would invoke his Fifth Amendment right against self-incrimination during cross-examination. At a conference and subsequent voir dire outside the presence of the jury, Gary proffered that Hopkins would testify that, while they were together at nightclubs on the night of May 14, 1994, he never saw Gary possess a firearm and that they were together until approximately ten minutes preceding the automobile wreck after which Gary was arrested. In the voir dire, Hopkins asserted his privilege against self-incrimination in response to questioning about thе breaking and entering, which immediately preceded his arrest. Hopkins was then facing pending state breaking and entering charges and a parole revocation proceeding and had not yet been sentenced on the federal charge.
Although Hopkins had testified in the first trial regarding the breaking and entering and had been assisted by counsel at that time, the court held that his prior testimony was not a voluntary, knowing, and intelligent waiver of his Fifth Amendment privilege, particularly because Hopkins’ separate counsel for the state proceedings had not been informed that Hopkins would be appearing in federal court. 3 Moreover, the court held that the government’s intended cross-examination regarding the breaking and entering was “germane” and “permissiblе” and thus refused to restrict its scope.
After excusing Hopkins from testifying, the court permitted Gary to introduce Hopkins’ prior recorded testimony from the first trial by having it read to the jury by Hopkins’ state counsel. Notwithstanding this ruling, Gary argued that his Sixth Amendment right to compulsory process was violated and moved for a mistrial on that ground. This motion was denied.
The jury returned a verdict of guilty on October 28, 1995. Gary was sentenced as an armed career criminal to twenty-four years and two months imprisonment, five years of supervised release, and a $50 special assessment. Judgment was entered on January 19, 1995, and Gary filed a timely notice of appeal.
II. ANALYSIS
A. Sixth Amendment Compulsory Process
This case requires us to harmonize a conflict between a defendant’s Sixth Amendment right “to have compulsory process for obtaining witnesses in his favor,” U.S. Const, amend. VI, and the government’s interest in cross-examining a defense witness who has invoked his Fifth Amendment right against self-incrimination.
Gary contends that his right to compulsory process was denied when the trial court refused to permit Hopkins to testify and instead only permitted Hopkins’ testimony from the first trial to be read to the jury. Gary argues that the trial court should have required Hopkins to invoke his right against self-incrimination during cross-examination in the jury’s presence.
“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense.... This right is a fundamental element of due process of law.”
Washington v. Texas,
While the government’s interest in cross-examining defense witnesses is not rooted in the Constitution,
see United States v. Pardo,
The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.
5 J. Wigmore,
Evidence
§ 1395, at 150 (Chadbourne rev. 1974) (emphasis in original),
quoted in Davis,
Courts have not permitted defendants to call witnesses to the stand who have indicated that they will refuse to answer the government’s questions on cross-examination with respect to non-collateral matters. In
United States v. De La Cruz,
Attempting to combat this solid phalanx of precedent, Gary cites cases in which courts permitted government witnesses to invoke the privilege against self-incrimination during defendant’s cross-examination without violating the Confrontation Clause of the
*310
Sixth Amendment.
See United States v. Berrío-Londoño,
In determining whether the testimony of a witness who invokes the privilege against self-incrimination during cross-examination may be used against the defendant, a distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination.
When cross-examination is precluded only with respect to collateral issues, the Sixth Amendment does not require the court to strike the witness’s testimony.
See Berrío-Londoño,
When cross-examination on materiаl issues raised on direct examination is curtailed because of a witness’s valid claim of privilege, however, the trial court, in its discretion, may refuse to permit that witness’s testimony.
See De La Cruz,
We have recognized that it “may sometimes be feasible for a district court to reconcile the defendant’s right to present witnesses with a witness’s privilege against self-incrimination by limiting the scope of the latter’s testimony.”
Id.
at 26. In striking the appropriate balance between a defendant’s Sixth Amendment rights and the government’s interest in cross-examination, a “trial judge may or even must limit the government’s cross-examination on collateral matters if this can be done without unduly limiting the government and if doing so will preserve the defendant’s ability to call a material witness who would otherwise claim the privilege.”
De La Cruz,
Where, as here, a defense witness’s claim of privilege shields material testimony from cross-examination, however, this balance weighs against the defendant. The trial court held a voir dire hearing to determine whether the subject matter concerning which the witness intended to assert the Fifth Amendment was collateral. She fairly сoncluded that it was not. See Fed.R.Evid. 611(b) (giving court authority to exercise reasonable control over examination of witnesses to “make the interrogation and presentation effective for the ascertainment of the truth”).
In considering similar types of challenges brought under the Confrontation Clause of the Sixth Amendment, we have applied an abuse of discretion standard.
See Berrío-Londoño,
According to Gary’s proffer, “Hopkins would have testified that during the course of the evening, he was able to observe [Gary] *311 and never visually saw a firearm on his person, nor was one detected by the metal detectors, or doorman at the nightclubs.” Hopkins’ testimony certainly was material to the defense as it showed that, after a significant period of observation, he did not see Gary possess a firearm. However, at the first trial, Hopkins testified that the pair had been involved in two instances of breaking and entering after leaving the clubs and that he did not know whether Gary had hidden a gun in his car before going to the clubs. Had Hopkins been permitted to testify and to refuse to answer questions regarding the breaking and entering, as he told the court he would, the government’s cross-examination of Hopkins would have been rendered ineffective.
Thus the trial court found, “[t]he matters that Mr. Hopkins would have testified to and, in fact, did testify to at the previous trial were closely related in time and space to the matter that is before the Court in which the jury must consider. And therefore, all of the information that would have been elicited or attempted to have been elicited by the Government would have been germane and would have been permissible.” We discern no abuse of discretion in the trial court’s determination that the subject matter of the cross-examination as to which Hopkins wоuld have asserted his privilege was material and relevant. Any limitation on cross-examination would have been unduly prejudicial to the government.
Furthermore, in striking the appropriate balance, the trial court took into consideration that Gary was not deprived of an opportunity to present Hopkins’ testimony. Although Hopkins did not appear personally in the second trial, his testimony from the first trial was read in full to the jury. ■ It was read with counsel for the government and for Gary each reading their respective parts and a third person reading Hopkins’ responses. Indeed, at oral argument Gary’s counsel engaged in a brief thespian demonstration intended to convey the desiccated manner in which Hopkins’ testimony was read at Gary’s second trial. Wе noted then, and reiterate today, that whenever transcript testimony is admitted in a trial, the fact-finder is deprived of a full-fledged opportunity to assess directly the credibility and demeanor of the declar-ant. The rules of evidence, however, permit such evidence to be admitted at trial. See Fed.R.Evid. 804(b)(1) (former testimony exception to hearsay rule).
Gary suggests that, rather than prohibit Hopkins’ live testimony altogether, the trial court should have permitted Hopkins to testify on direct examination and forced him to invoke the Fifth Amendment privilege on cross-examination in the presence of the jury. That solution, Gary argues, strikes a more appropriate balance between the government’s and the defendant’s interests because “the government could hаve used the transcript to impeach this testimony or could have relied upon the adverse inference of the witness’s invocation of the Fifth.” This approach finds some support in
United States v. Kaplan,
In
Kaplan,
we distinguished
United States v. Johnson,
A different case is presented where, as here, the defense seеks to cross-examine a government witness within the scope of his direct and then the witness asserts the privilege. We note, first, that the impact on the jury’s deliberations from asserting the privilege has to be less here than in Johnson from the fact that Brown did not claim the privilege comprehensively. Instead, Brown answered most questions put to him by the defense and could have refused to answer at trial only those bearing on the alleged cocaine abuse. And *312 whatever danger exists that the jury may give too much weight to this line of questioning is small in comparison to its impeachment value.
Kaplan,
Unlike Kaplan, where the invocation of the Fifth Amendment pertained to a collateral matter — the effect of alleged cocaine abuse on the witness’s power of memory or observation — hеre the assertion of the privilege would have shielded the witness from testifying on a core issue addressed on direct examination. Hopkins’ claim of privilege would have precluded government inquiry into the intervening events between the time Hopkins observed the defendant to have no firearm and the time the police officer testified he saw a gun in defendant’s possession. Such testimony would have been directly relevant to Gary’s guilt or innocence. Accordingly, while the trial judge may have had the discretion to strike a balance along the lines proposed by the defendant, 4 there was no abuse of discretion in striking the balance a different way. 5
B. Waiver of Fifth Amendment Privilege Against Self-Incrimination
Gary asserts that Hopkins waived his privilege against self-incrimination by virtue of his testimony in the first trial regarding the breaking and entering. Therefore, he contends, the trial court wrongly sustained Hopkins’ claim of privilege in the second trial.
The Fifth Amendment privilege is “fundamental to our system of constitutional rule.”
Miranda v. Arizona,
Once a witness voluntarily has revealed an incriminating fact, “the privilege cannot be invoked to avoid disclosure of the details.”
Rogers,
*313 C. The “Petite Policy”
Gary contends that his federal prosecution violated the Justice Department’s policy guarding against dual federal-state prosecutions.
See Petite v. United States,
D. Selective Prosecution
Gary's contention that he was entitled to an evidentiary hearing on the ground of sеlective prosecution is similarly without merit. Although the exercise of prosecutorial discretion is subject to the constitutional guarantee of equal protection and “may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,”
Wayte v. United States,
As an initial matter, we note that Gary did not timely raise this issue before the district court. In a brief colloquy on the morning of trial, Gary’s counsel first raised the issue of selective prosecution to the trial judge but’ admitted that she had not filed a motion for an evidentiary hearing. In the absence of еxceptional circumstances — and none are presented here — a claim of selective prosecution that is not raised prior to trial is deemed waived.
Tracey v. United States,
Even if the motion had been timely filed, the burden is upon the defendant to make an initial showing that an evi-dentiary hearing is warranted. “A selective prosecution claim merits evidentiary hearing if it alleges sufficient ‘facts a) tending to show that [defendant] has been selectively prosecuted and b) raising a reasonable doubt about the propriety of the prosecution’s purpose’ ... unless the government can present countervailing reasons.”
Peñagarícano-Soler,
Here, Gary did not make any threshold showing to the trial court tending to show selective prosecution, i.e., “that [he] was prosecuted while others similarly situated were not.”
United States v. Bassford,
E. Reliance on Perjured Testimony
Gary contends that his conviction was somehow tainted by allegedly perjurious testimony that was elicited in his first trial. Specifically, he contends that Officer John Arzoomanian of the North Providence Police Department committed perjury at the first trial when testifying as to why he did not fingerprint the firearm that was seized from Gary. In Gary’s first trial, in response to a question on re-direct examination as to why he did not attempt to recover fingerprints, he answered: “As far as the size of the gun— the surface of the weapon, also the people involved in the case both had gloves on.” (emphasis added). On re-cross, Arzoomani-an hedged:
Q. And you didn’t bother to attempt to lift a print in this case because this man had gloves on; is that your testimony?
A. Well, there were gloves found at the scene and gloves found in the vehicle also.
At the second trial, however, Arzoomanian testified that after the arrest, but before the first trial, he learned that the gloves actually belonged to rescue personnel. He explained: “You asked the reason why I didn’t print the weapon. I said because he had gloves on. And I found out later, he didn’t. At that point, the evidence was handled by too many people.” As Gary’s counsel ably еmphasized during cross-examination, Arzoomanian’s testimony in the two proceedings was inconsistent. Gary asserts that Arzoomanian therefore committed perjury.
Arzoomanian’s testimony in the second trial did differ in a troubling way from that given in the first trial. His explanation of the inconsistency is weak because at the first trial he testified that Gary actually had worn gloves at the time of arrest — not that he mistakenly believed at the time of arrest that Gary was wearing gloves. However, it is axiomatic that inconsistent testimony is not
per se
perjurious.
See United States v. Dunnigan,
Moreover, because Gary’s first trial did not result in a conviction, he was not prejudiced even if Arzoomanian testified falsely.
Cf. Kyles v. Whitley,
— U.S. -, - n. 7,
*315
Indeed, courts have held that prosecutorial misconduct must rise to an egregious level for double jeopardy to bar a retrial. A defendant cannot be retried only “where the misconduct of the prosecutor is undertaken ... to prevent an acquittal that [he] believed at the time was likely to occur in the absence of his misconduct.”
United States v. Wallach,
F. Application of Sentencing Guidelines
Gary asserts that the trial judge erred in calculating his sentence under U.S.S.G. § 4B1.4. This provision determines the offense level and criminal history category of persons who are subject to an enhanced sentence under the ACCA, 18 U.S.C. § 924(e). Gary does not contest that he is an armed career criminal. Rather, he argues that the trial judge incorrectly applied U.S.S.G. § 4B1.4(b)(3)(A) to arrive at an offense level of 34 when she should have used § 4B1.4(b)(1) to arrive at a lower level.
8
We review questions of interpretation under the guidelines
de novo. See United States v. Fiore,
U.S.S.G. § 4B1.4 instructs the sentencing judge to select the offense level that is the “greatest” of three categories. First, there is the offense level applicable from the underlying offense, which here is U.S.S.G. § 2K2.1 dealing with unlawful possession of a firearm. As Gary had at least two prior felony convictions of either a crime of violence or а controlled substance offense, he would receive a minimum offense level of 24 under this provision. Because Gary “used or possessed” the firearm “in connection with” another felony offense (i.e., breaking and entering), which results in an increase of four levels under U.S.S.G. § 2K2.1(b)(5), Gary’s presentence report calculated his base offense level at 28. PSR ¶ 14-15. The report then added a three-level victim-related adjustment for assaulting a police officer pursuant to U.S.S.G. § 3A1.2(b) to reach an adjusted offense level of 31. PSR ¶ 20.
Gary disputes this interpretation of the guidelines. This Court recently held that use of a firearm in an assault and battery warranted the four-level enhancement under U.S.S.G. § 2K2.1(b)(5).
United States v. Sturtevant,
The second category, which would adopt the offense level from U.S.S.G. § 4B1.1, is not applicable here. U.S.S.G. § 4B1.1 does not apply because the “instant offense” (i.e., felon-in-possession of a firearm) is not a crime of violence.
See
U.S.S.G. § 4B1.2 comment n. 2;
United States v. Doe,
The third category directs the court to adopt an offense level of 34 if the “defendant used or possessed the firearm or ammunition in connection with a crime of violence” or 33 in all other cases. Because the judge must select the greatest of the three categories, 33 is the
minimum
“default” offense level available under this provision without a downward adjustment for acceptance of responsibility.
See United States v. George, 56
F.3d 1078, 1086 (9th Cir.),
cert. denied,
- U.S. -,
Finding that Gary possessed the firearm in connection with a violent crime (i.e., breaking and entering), the trial judge adopted 34 as the offense level pursuant to § 4B1.4(b)(3)(A).
9
The court calculated the guidelines sentencing range to be 262-327 months (offense level 34, criminal history category VI) and imposed a sentence of 290 months. Gary contests the trial court’s interpretation of U.S.S.G. § 4B1.4(b)(3)(A). Because a felon-in-possession charge is not itself a violent crime,
see Doe,
Making a determination under U.S.S.G. § 4B1.4(b)(3)(A) involves a two-step inquiry. First, the court must decide whether the predicate offense is a violent felony. Second, the court must consider whether the defendant used or possessed a firearm in connection with that violent predicate offense.
In making the first inquiry, the court is to employ “a formal categorical approach” irrespective of the actual factual circumstances of the underlying offense.
Taylor v. United States,
With regard to the second part of the inquiry, the trial court found that the defendant possessed а firearm in connection with the breaking and entering. Here, the court is to consider the facts to determine whether there is a sufficient nexus between
*317
possession of the firearm and commission of the underlying offense.
See United States v. Samuels,
In construing a similar guidelines provision, U.S.S.G. § 2K2.1(b)(5), we have held that “the phrase ‘in connection with’ should be interpreted broadly and [ ] where a defendant’s possession of a firearm aids or facilitates the commission of another offense, the requisite link is present.”
United States v. Thompson,
We therefore have no difficulty upholding the trial court’s findings that Gary possessed the firearm “in connection with” the breaking and entering. Gary and Hopkins broke into at least two commercial establishments. When arrested, both men were in possession of firearms, and merchandise from one of the stores was found in Gary’s car. The trial court found that Gary and Hopkins armеd themselves when they decided to commit the breaking and entering for the purpose of facilitating that crime. “[W]e review the court’s factfinding for clear error, giving due deference to the court’s application of the guidelines to the facts.”
Thompson,
III. CONCLUSION
For the reasons stated herein, the conviction and sentence of Raymond J. Gary are AFFIRMED.
Notes
. Gary also contends he did not receive a fair trial in light of the totality and cumulative effect of the trial court's errors. Since we do not find error with respect to any of the issues, we do not address this claim separately.
. Gary was charged with possession of a firearm, breaking and entering, conspiracy, assault with a dangerous weapon, and reckless driving.
. Hopkins was represented by three different attorneys in the various federal and state proceedings who apparently did not communicate in advance of Hopkins' testimony in the first trial. In addition, when Gary's counsel interviewed Hopkins to solicit information upon which his testimony in the first trial was based, she asked permission only of the attorney representing Hopkins on the federal charges.
. There is no evidence in the record that the defendant proposed this particular solution to the trial judge.
. We also note that if Gary had opted to testify as to whether he possessed a gun at the time of his arrest, he would not have been permitted to take the Fifth Amendment with respect to the breaking and entering offensеs which immediately preceded.
See Brown v. United States,
. The trial court arrived at the same conclusion by a different path, namely, that Hopkins’ decision to testify at the first trial was not a voluntary, knowing, and intelligent waiver of his Fifth Amendment privilege because he had not been fully apprised of the consequences of his testimony with respect to the state proceedings. In light of the above discussion, we need not address the propriety of this decision.
See In re Morganroth,
*313
. These so-called statistics, compiled by hand by defense counsel based on “information and belief,” are comprised solely of a list оf prosecutions brought in the District of Rhode Island under 18 U.S.C. §§ 922 and 924 from 1990-1994 purporting to show that 70% of those prosecuted were members of a minority racial or ethnic group. The statistics do not address whether similarly situated whites were not prosecuted. Given the procedural posture of this case, we need not resolve the difficult question as to when raw data demonstrate a statistical disparity sufficient to trigger the need for a hearing.
See Peñagarícano-Soler,
. U.S.S.G. § 4B1.4 provides in pertinent part:
(a) A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.
(b) The offense level for an armed career criminal is the greatest of:
(1) the offense level applicable from Chapters Two and Three; or
(2) the offense level from § 4B1.1 (Career Offender) if applicable; or
(3)(A) 34, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence or controlled substance offense, as defined in § 4B 1.2(1), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a)[]; or
(B) 33, otherwise!]
. At Gary's sentencing, the trial court held that “the possession of a gun must be found to have either been used or to have facilitated the commission of another offense” and determined that Gary’s possession of a firearm facilitated the commission of the breaking and enterings.
. We also note that in
Fiore,
as here, the commercial burglary occurred in Rhode Island, which defines burglary, in part, as breaking and entering a shop with the intent to commit robbery or larceny.
. Subsequent to oral argument in this case, the Supreme Court issued an opinion in
Bailey v. United States,
- U.S. -,