USCA1 Opinion
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 97-1187
UNITED STATES OF AMERICA,
Appellee,
v.
ERIC GRAY SNYDER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Victoria L. Nadel for appellant.
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James F. Lang, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief, for the
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United States.
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January 29, 1998
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SELYA, Circuit Judge. A jury found defendant-appellant
SELYA, Circuit Judge.
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Eric Gray Snyder guilty of being a felon in possession of a
loaded firearm, in violation of 18 U.S.C. 922(g)(1). Snyder
appeals. We affirm his conviction.1
The appellant has cultivated a hothouse of issues.
Some are hardier than others. We address seven of them,
rejecting the remainder all of which are patently meritless
without editorial comment. We discuss the facts of the case,
insofar as necessary, in connection with our discussion of
particular issues.
1. The Events of January 8-10. The appellant's
1. The Events of January 8-10.
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principal Fourth Amendment claim is that the Boston police lacked
reasonable suspicion to detain him on January 8, 1995, and
likewise lacked probable cause to arrest him on January 10, or to
search a locked briefcase in the trunk of his car coincident with
the arrest. On this basis, he contends that the district court
erred in refusing to suppress evidence obtained during and after
the stop, arrest, and search. We review de novo the trial
court's determinations of reasonable suspicion and probable
cause, but defer to the trial court's subsidiary findings of fact
(accepting those findings unless they are clearly erroneous).
See United States v. Young, 105 F.3d 1, 5 (1st Cir. 1997).
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The governing legal standards are familiar. "[A]
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1In a separate cross-appeal, No. 97-1233, the government
challenges the district court's leniency in sentencing. The two
appeals were consolidated for purposes of oral argument, but we
have elected to write a separate opinion for each.
2
police officer may in appropriate circumstances and in an
appropriate manner approach a person for purposes of
investigating possibly criminal behavior even though there is no
probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22
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(1968). Such an investigatory stop requires only reasonable
suspicion, based on "specific and articulable facts," id. at 21,
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that, viewed through the eyes of a prudent police officer,
warrant the intrusion. Like reasonable suspicion, "probable
cause is a fluid concept turning on the assessment of
probabilities in particular factual contexts." Illinois v.
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Gates, 462 U.S. 213, 232 (1983). This "totality-of-the-
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circumstances" approach "recognize[s] the value of corroboration
of details of an informant's tip by independent police work."
Id. at 241.
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We need not dwell on the events of January 8. It
suffices to say that the district court's findings, made after a
three-day evidentiary hearing, are plainly supportable. The
record, fairly read, conduces to a finding that the police
protagonist, Officer Doogan, had reasonable suspicion, based on
specific and articulable facts, sufficient to justify a
relatively brief detention.
While we dwell at greater length on the events of
January 10, we are satisfied that a m lange of adequately
corroborated information and circumstances generated the probable
cause necessary for Doogan to arrest Snyder and search his
vehicle on that date. We explain briefly.
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Snyder was not a stranger to Doogan, who had some prior
suspicions about Snyder's involvement in nefarious activities (as
witness the detention of January 8). Doogan had learned, by way
of a tip from an unnamed informant, that on January 9, Snyder,
driving a black Honda, had been in possession of a briefcase
containing a handgun.2 On January 10, Doogan received a page
from John Hawk, an informant who had occasionally worked for him
in the past. Doogan telephoned Hawk, who reported that Snyder
had just robbed him at gunpoint, stolen a quantity of Valium
tablets, and sped off in a black Honda accompanied by a known
criminal (Diaferio). Hawk also said that the men were heading
for Roslindale. Doogan knew that Diaferio lived at 17 Murray
Hill Road, Roslindale, a known drug haven that had figured in the
January 8 detention. Believing that the men were likely to turn
up at 17 Murray Hill Road, Doogan arranged a police surveillance
at that address. Shortly thereafter, Snyder arrived, driving a
black Honda and accompanied by Diaferio. He parked the car on
the street. At this point, the police had enough information in
support of Hawk's report to establish probable cause that Snyder,
a previously convicted felon, had committed a crime and that he
possessed not only the avails of the robbery but also a handgun.
The officers converged on Snyder and Diaferio, frisked
the two men, and found no weapons. They then searched the black
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2Another detective passed this tip to Doogan, having
garnered it from an informant who worked with the federal Bureau
of Alcohol, Tobacco, and Firearms and the Massachusetts State
Police.
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Honda. The vehicle's trunk yielded a briefcase. Doogan shook
the briefcase and felt something heavy inside it. When Doogan
pried open the corner of the locked briefcase, he saw what
appeared to be a gun. Doogan then forced the lock open and
confiscated a fully loaded Colt semi-automatic .32 caliber
pistol. The police arrested Snyder and took him into custody. A
later search of his person at the station house turned up 26
Valium tablets in his pants pocket.
The search was lawful. Snyder parked his car on a
public highway. A warrantless search is justified even in the
case of a stationary vehicle parked on a public road based on its
inherent mobility and the reduced expectation of privacy afforded
to vehicles. See California v. Carney, 471 U.S. 386, 392-93
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(1985). Thus, under a recognized exception to the Fourth
Amendment, a police officer may search such a vehicle without a
warrant if there is probable cause to believe that a crime has
been committed and that contraband or evidence of illegal
activities will be found there. See Carroll v. United States,
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267 U.S. 132, 153-54 (1925); United States v. Panitz, 907 F.2d
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1267, 1271 (1st Cir. 1990). By the same token, a diminished
expectation of privacy extends to personal property within an
automobile. If the police have probable cause to search a car,
they also may inspect the interior of any closed container within
it that reasonably might be thought to contain a proper object of
the search. See California v. Acevedo, 500 U.S. 565, 579-80
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(1991); United States v. Ross, 456 U.S. 798, 823 (1982).
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These principles are dispositive here. As previously
indicated, Officer Doogan had probable cause to believe that a
crime had been committed and that a search of the Honda likely
would produce evidence of it (i.e., the Valium tablets and the
gun). It follows that Doogan had a right not only to search the
Honda for the gun, but also to search the briefcase for it.
Accordingly, the district court did not err in denying the
appellant's motion to suppress.
2. Sufficiency of the Evidence. The appellant
2. Sufficiency of the Evidence.
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challenges the sufficiency of the government's proof, arguing
that the evidence adduced cannot support a finding that he
knowingly possessed the firearm. This argument is procedurally
defaulted. See United States v. Neal, 36 F.3d 1190, 1206-07 (1st
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Cir. 1994) (holding that grounds not urged below in support of a
motion for judgment of acquittal are deemed waived on appeal).
There is, of course, an exception for convictions that are
"clearly and grossly unjust," id. at 1207, but that exception
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does not apply here.
Leaving procedural default to one side, the standard by
which sufficiency challenges are reviewed is straightforward:
An appellate court plays a very circumscribed
role in gauging the sufficiency of the
evidentiary foundation upon which a criminal
conviction rests. The court of appeals
neither weighs the credibility of the
witnesses nor attempts to assess whether the
prosecution succeeded in eliminating every
possible theory consistent with the
defendant's innocence. Instead, its task is
to canvass the evidence (direct and
circumstantial) in the light most agreeable
to the prosecution and decide whether that
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evidence, including all plausible inferences
extractable therefrom, enables a rational
factfinder to conclude beyond a reasonable
doubt that the defendant committed the
charged crime.
United States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997)
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(citations omitted). The evidence in this case easily passes
muster under the Noah test. After all, the standard demands that
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a reviewing court resolve all credibility conflicts in a manner
compatible with the verdict. See United States v. Santiago, 83
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F.3d 20, 23 (1st Cir. 1996). Here, a rational jury could have
chosen to believe Hawk and therefore could have found not only
constructive possession, but also actual possession.
3. Exculpatory Evidence. The appellant says that the
3. Exculpatory Evidence.
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government failed to disclose certain exculpatory evidence, in
violation of its duty under Brady v. Maryland, 373 U.S. 83, 87
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(1963). This contention was never raised in the district court;
and, moveover, the record indicates that the evidence in question
in fact was made known to the appellant before or during the
trial. Consequently, his complaint is for delayed disclosure,
rather than non-disclosure, and he has utterly failed to show any
prejudice stemming from the delay. The claim of error therefore
fails. See United States v. Sepulveda, 15 F.3d 1161, 1178 (1st
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Cir. 1993).
4. Jury Instructions. The appellant calumnizes the
4. Jury Instructions.
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district court's instruction to the jury on constructive
possession. The challenged instruction is virtually identical to
that which we criticized in United States v. Booth, 111 F.3d 1, 2
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(1st Cir. 1997). Here, like in Booth, the defendant interjected
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no contemporaneous objection to the instruction, and our review
is for plain error. See id.
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In Booth, we concluded that the language used, though
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infelicitous, did not require reversal. We reach the same
conclusion here. Taking the charge as a whole, see United States
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v. Weston, 960 F.2d 212, 216 (1st Cir. 1992), and weighing the
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strength of the government's case a case which, in our view, is
stronger than that presented in Booth we find that any error in
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the constructive possession instruction was harmless.
5. The Summation. The appellant accuses the
5. The Summation.
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prosecutor of committing three sins in the course of closing
argument: improper vouching; commenting upon the defendant's
right to remain silent; and commenting upon facts not in
evidence. The appellant's trial counsel did not object to any of
the remarks and for good reason. While all three practices are
to be condemned, none of them occurred here. We add only that a
defendant who fails to lodge a contemporaneous objection to the
prosecution's summation is in a perilously poor position to
complain that a seemingly appropriate comment conceivably could
have been taken by jurors in some other (improper) way. See
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United States v. Lilly, 983 F.2d 300, 307-08 (1st Cir. 1992).
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6. Estrella. During the sentencing phase, the
6. Estrella.
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district court applied this court's recent decision in United
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States v. Estrella, 104 F.3d 3, 5-8 (1st Cir. 1997), when ruling
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that Snyder's prior criminal record rendered him subject to the
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provisions of the Armed Career Criminal Act. The appellant asks
us to reconsider Estrella, but offers no new reasons for doing
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so. We have held before, and today reaffirm, that prior panel
decisions are binding upon newly constituted panels in the
absence of supervening authority. See United States v. Objio-
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Sarraff, 108 F.3d 421, 421 (1st Cir. 1997) (per curiam); United
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States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995); United States
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v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991). The district
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court appropriately followed Estrella in this instance, and we
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are unable to reexamine Estrella's holding at this time.3
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7. Ineffective Assistance. The appellant presses a
7. Ineffective Assistance.
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claim, which he did not advance below, that trial counsel's
performance was constitutionally deficient. Such claims
ordinarily are fact-based and, with rare exceptions, will not be
heard for the first time on direct appeal. See United States v.
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Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (listing representative
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cases). The appellant's challenge is factbound and there is no
basis for deviating from the usual rule. Thus, we dismiss this
aspect of the appeal without prejudice to the appellant's right
to renew the claim on a petition brought pursuant to 28 U.S.C.
2255.
We need go no further. From aught that appears, the
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3Subsequent to oral argument of this appeal, the Supreme
Court granted certiorari in Caron v. United States, 66 U.S.L.W.
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3444 (U.S. Jan. 9, 1998) (No. 97-6270). The Court's answer to
the question certified in Caron possibly could require us to
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reexamine Estrella. We will deal with this possibility in the
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opinion resolving the government's cross-appeal.
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appellant was fairly tried and lawfully convicted. The judgment
of conviction (but not the sentence) will therefore be
Affirmed.
Affirmed.
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