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[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]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

_________________________

No. 97-1187

UNITED STATES OF AMERICA,

Appellee,

v.

ERIC GRAY SNYDER,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

_________________________

Victoria L. Nadel for appellant.

_________________
James F. Lang,
_____________

Assistant United States Attorney,

with whom

Donald K. Stern, United States

________________

Attorney, was on brief,

for the

United States.

_________________________

January 29, 1998

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.

A jury found defendant-appellant

_____________

Eric

Gray Snyder

loaded firearm,

appeals.

guilty of

in violation of

are

hardier

has

than

18 U.S.C.

possession of

922(g)(1).

without editorial

We

hothouse

address

all of which are

comment.

as necessary,

cultivated a

others.

rejecting the remainder

insofar

felon in

Snyder

We affirm his conviction.1

The appellant

Some

being a

in

seven

issues.

of

them,

patently meritless

We discuss the

connection

of

with

facts of

our

the case,

discussion

of

particular issues.

1.
1.

The Events of January 8-10.

The Events of January 8-10.
_____________________________

The

appellant's

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

erred in refusing to suppress

the

stop,

court's

arrest, and

determinations

evidence obtained during and after

search.

of

district court

We

review de

reasonable

novo

suspicion

the trial

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).

___ _____________
_____

The

governing

legal

standards are

familiar.

"[A]

____________________

1In

separate cross-appeal,

challenges the district

appeals were consolidated

No. 97-1233,

the government

court's leniency in sentencing.

for purposes of oral

The two

argument, but we

have elected to write a separate opinion for each.

police

officer

appropriate

investigating

may

manner

in

appropriate

approach

Such

person

for

and

in

purposes

an

of

possibly criminal behavior even though there is no

probable cause to make an arrest."

(1968).

circumstances

an investigatory

Terry v. Ohio, 392 U.S. 1, 22

_____
____

stop

requires only

suspicion, based on "specific and articulable

reasonable

facts," id. at 21,

___

that,

viewed

warrant

cause

the

is

probabilities

Gates,
_____

462

through the

intrusion.

eyes

Like

fluid

concept

in

particular

U.S.

213,

of

prudent police

reasonable

turning

232

details of an

suspicion, "probable

on

the

assessment

of

factual contexts."

Illinois
________

v.

(1983).

This

circumstances" approach "recognize[s] the

of

officer,

informant's tip

"totality-of-the-

value of corroboration

by independent

police work."

events of

8.

Id. at 241.
___

We need

not dwell

suffices to say that the

three-day

record,

on the

protagonist,

It

district court's findings, made after a

evidentiary hearing,

fairly read,

January

conduces

Officer Doogan, had

are

to

plainly

supportable.

finding that

the

The

police

reasonable suspicion, based on

specific

and

articulable

facts,

sufficient

at greater

length

to

justify

events

of

relatively brief detention.

While we

January

10, we

dwell

are

satisfied

that

on the

m lange

of

adequately

corroborated information and circumstances generated the probable

cause

necessary

for Doogan

vehicle on that date.

to

arrest

We explain briefly.

Snyder

and search

his

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,

of a tip

that on January

9, Snyder,

possession of

a briefcase

driving

from an unnamed informant,

a black

containing a

Honda, had

handgun.2

On January 10,

from John Hawk, an informant

in the

had

past.

Doogan

just robbed

tablets, and

sped off in

for Roslindale.

Doogan received

gunpoint, stolen

a black

Hawk also

Doogan

a page

who had occasionally worked for him

telephoned Hawk, who reported

him at

criminal (Diaferio).

been in

by way

that Snyder

a quantity

Honda accompanied by

said that the men

knew that Diaferio

of Valium

a known

were heading

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

up at 17 Murray Hill

Road, Doogan arranged a police surveillance

at that address.

Shortly thereafter, Snyder arrived,

black Honda and accompanied

the street.

At

by Diaferio.

to turn

driving a

He parked the car

on

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

the two men,

converged on Snyder and Diaferio, frisked

and found no weapons.

They then searched the black

____________________

2Another

detective

passed

garnered it from an informant

this

tip

to

Doogan,

having

who worked with the federal Bureau

of Alcohol,

Tobacco, and

Firearms and

the Massachusetts

State

Police.

Honda.

The vehicle's trunk

the briefcase

pried

yielded a briefcase.

and felt something

open the

corner

appeared to

be a

confiscated

gun.

fully

of

heavy inside it.

the locked

Doogan then

loaded

Colt

briefcase,

forced the

semi-automatic

Doogan shook

When Doogan

he saw

what

lock open

and

.32

caliber

pistol.

The police arrested Snyder and took him into custody.

later search

of his

person at

the station

house turned up

26

Valium tablets in his pants pocket.

The

search was

public highway.

lawful.

A warrantless

Snyder parked

his car

search is justified even

on a

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.

(1985).

Thus,

See California
___ __________

under

Amendment, a police

warrant if there

been

committed

activities will

v. Carney,
______

recognized

exception

officer may search such a

is probable cause to

and

471 U.S.

that

contraband

be found there.

to

386, 392-93

the

Fourth

vehicle without a

believe that a crime

or

evidence

See Carroll v.
___ _______

of

has

illegal

United States,
_____________

267 U.S.

1267,

132, 153-54 (1925);

1271 (1st

expectation of

automobile.

United States v. Panitz,

_____________
______

Cir. 1990).

By the

privacy extends

same token,

to personal

If the police have

907 F.2d

a diminished

property within

an

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

(1991); United States v. Ross, 456 U.S. 798, 823 (1982).

_____________
____

These principles are dispositive

indicated, Officer

crime had been

would produce

Doogan had probable

committed and that

evidence of it

gun).

It follows that

Honda

for the

Accordingly,

gun, but

the

here.

As

previously

cause to believe

a search of the

that a

Honda likely

(i.e., the Valium tablets

and the

Doogan had a right not only to search the

also

to search

district court

did

not

the briefcase

err

for it.

in denying

the

appellant's motion to suppress.

2.
2.

challenges

that the

Sufficiency of the Evidence.

Sufficiency of the Evidence.
______________________________

the sufficiency

evidence

adduced

The

of the

government's proof,

cannot

support a

finding

appellant

arguing

that

he

knowingly possessed the

defaulted.

firearm.

This argument

is procedurally

See United States v. Neal, 36 F.3d 1190, 1206-07 (1st

___ _____________
____

Cir. 1994) (holding that grounds not urged below in support

motion for judgment

There

is,

of acquittal are

of course,

"clearly and

an

deemed waived on

exception

grossly unjust,"

for

id. at
___

appeal).

convictions that

1207, but

of a

are

that exception

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

evidentiary foundation upon

conviction
neither

rests.
weighs

The
the

of

the

which a criminal
court

of

credibility

appeals
of

the

witnesses nor attempts

to assess whether the

prosecution

in

succeeded

eliminating every

possible

theory

consistent

defendant's innocence.
to

evidence

circumstantial) in

the light

the prosecution

the

Instead, its task is

the

to

canvass

with

(direct

and

most agreeable

and decide

whether that

evidence, including all

plausible inferences

extractable

therefrom,

enables

factfinder

to conclude

beyond a

doubt

that

the

defendant

rational
reasonable

committed

the

charged crime.

United

States

v.

Noah,

130

F.3d 490,

494

(1st

Cir.

1997)

______________

(citations

____

omitted).

The evidence

muster under the Noah test.

____

a reviewing court

chosen to

easily passes

After all, the standard demands that

resolve all credibility conflicts in

compatible with the

F.3d 20, 23

in this case

verdict.

(1st Cir. 1996).

believe Hawk and

See United States

___ _____________

a manner

v. Santiago, 83
________

Here, a rational jury

could have

therefore could have found

not only

constructive possession, but also actual possession.

3.
3.

Exculpatory Evidence.
Exculpatory Evidence.
_____________________

government failed

violation of its

(1963).

The appellant says that the

to disclose certain

duty under Brady

_____

This contention was

exculpatory evidence,

v. Maryland, 373 U.S.

________

in

83, 87

never raised in the district court;

and, moveover, the record indicates that the evidence in question

in fact

was made

known to the

trial.

Consequently, his

appellant before

complaint is for

or during

the

delayed disclosure,

rather than non-disclosure, and he has utterly failed to show any

prejudice stemming from the delay.

fails.

See
___

The claim of error therefore

United States v. Sepulveda, 15 F.3d

_____________
_________

1161, 1178 (1st

Cir. 1993).

4.
4.

district

Jury Instructions.
Jury Instructions.
_________________

court's

possession.

instruction

The appellant

to

the

jury

calumnizes the

on

constructive

The challenged instruction is virtually identical to

that which we criticized in United States v. Booth, 111 F.3d 1, 2

_____________
_____

(1st Cir. 1997).

Here,

like in Booth, the defendant interjected

_____

no contemporaneous objection

is for plain error.

did

conclusion here.

our review

See id.
___ ___

In Booth, we
_____

infelicitous,

to the instruction, and

not

concluded that the language

require reversal.

We

used, though

reach

the same

Taking the charge as a whole, see United States

___ _____________

v. Weston, 960 F.2d

______

212, 216 (1st Cir.

1992), and weighing

the

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

the constructive possession instruction was harmless.

5.
5.

The
Summation.
The
Summation.
_______________

prosecutor

of committing

argument:

improper

right

to

evidence.

remain

The

three sins

vouching;

silent;

and

appellant

in the

course

commenting upon

commenting

accuses

the

of closing

the defendant's

upon

facts

not

in

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.

defendant who

fails to lodge a contemporaneous

prosecution's

summation

complain that

a seemingly appropriate

is

in a

perilously

We add only that a

objection to the

poor

position to

comment conceivably could

have been

taken by

jurors in

some other

(improper) way.

See
___

United States v. Lilly, 983 F.2d 300, 307-08 (1st Cir. 1992).
_____________
_____

6.
6.

district court

Estrella.
Estrella.
________

applied this

During

the

sentencing

court's recent

decision in

States v. Estrella, 104 F.3d 3, 5-8 (1st Cir. 1997),

______
________

that Snyder's prior

criminal record rendered him

phase,

the

United
______

when ruling

subject to the

provisions of the Armed Career

us to

so.

Criminal Act.

reconsider Estrella, but

________

We

have held before,

decisions

absence of

are binding

upon

offers no new reasons

and today reaffirm, that

newly

supervening authority.

Sarraff, 108 F.3d

_______

The appellant asks

constituted

prior panel

panels

See United States

___ _____________

421, 421 (1st Cir. 1997)

for doing

in

the

v. Objio______

(per curiam); United

______

States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995); United States

______
________
_____________

v.

Wogan, 938 F.2d

_____

court

1446, 1449

(1st Cir.

appropriately followed Estrella

________

1991).

The district

in this instance,

are unable to reexamine Estrella's holding at this time.3

________

and we

7.
7.

claim,

which

performance

ordinarily are

Ineffective Assistance.
Ineffective Assistance.
______________________

he did

was

not

The appellant

advance below,

constitutionally

that

trial counsel's

deficient.

appeal.

1058, 1063 (1st Cir. 1993)

cases).

appellant's challenge is factbound and

for deviating from the usual rule.

aspect of the

to renew the

claims

See United States v.

___ _____________

Mala, 7 F.3d
____

basis

Such

fact-based and, with rare exceptions, will not be

heard for the first time on direct

The

presses a

appeal without prejudice to

(listing representative

there is no

Thus, we dismiss this

the appellant's right

claim on a petition brought pursuant to 28 U.S.C.

2255.

We need

go no further.

From aught that

appears, the

____________________

3Subsequent to
Court

of this

granted certiorari in Caron v.

_____

3444 (U.S. Jan.

the

oral argument

9, 1998) (No.

question certified

reexamine Estrella.
________

We will

Supreme

United States, 66 U.S.L.W.

_____________

97-6270).

in Caron
_____

appeal, the

The Court's

possibly could

answer to

require

deal with this possibility

us to

in the

opinion resolving the government's cross-appeal.

appellant was fairly tried and

lawfully convicted.

The judgment

of conviction (but not the sentence) will therefore be

Affirmed.
Affirmed.
________

10