              United States Court of Appeals
                         For the First Circuit

No. 11-1625

                       UNITED STATES OF AMERICA,

                               Appellee,

                                   v.
                            MOISES CINTRON,

                          Defendant-Appellant.


              APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MASSACHUSETTS
            [Hon. Nathaniel M. Gorton, U.S. District Judge]


                                  Before
                          Howard, Circuit Judge,
                       Souter,* Associate Justice,
                    and Torresen,** District Judge.


     Page Kelley, Office of the Federal Public Defender, with
whom Rheba Rutkowski, Assistant Federal Public Defender, was on
brief for appellant.
     David M. Lieberman, U.S. Dept. Of Justice, with whom Carmen
M. Ortiz, United States Attorney, Lanny A. Breuer, Assistant
Attorney General, and John D. Buretta, Deputy Assistant Attorney
General, were on brief for appellees.


                             July 19, 2013




     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
     **
          Of the District of Maine, sitting by designation
               TORRESEN, District      Judge.        Appellant Moises Cintron

entered a conditional guilty plea to a single-count indictment

charging him with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1).              Cintron preserved his right

to appeal the denial of his motions to suppress the firearm

seized      from   him   during   a   lawful    traffic    stop.1   On      appeal,

Cintron argues that the district court abused its discretion by

denying his first motion to reconsider and second motion to

suppress without holding an evidentiary hearing.                For the reasons

set forth below, we affirm the district court.

BACKGROUND

               On November 5, 2007, Massachusetts State Police Trooper

Richard Gaudet observed a Nissan Maxima driving erratically on

Route 128 in Lynnfield, Massachusetts.                Trooper Gaudet activated

his lights and signaled the driver to stop.                  The car came to a

halt in the middle of the passing lane of the busy highway.

Trooper Gaudet, joined by Trooper Stevie Browning and Sergeant

James       Deyermond,   approached    the     car   and   discovered   a   female

driver, a young girl in the passenger seat, and Cintron draped


        1
      Although Cintron filed a motion to suppress the gun and
statements made after his arrest, a motion to reconsider this
motion, a second motion to suppress the gun, and a motion to
reconsider the second motion to suppress, only the denial of the
second motion to suppress and the motion to reconsider the first
motion to suppress were preserved for appeal.

                                        -2-
across the backseat either asleep or unconscious.

          While Trooper Browning spoke with the driver, Sergeant

Deyermond tried to rouse Cintron, first banging on the back

passenger-side window, then opening the door and shaking him.

When Cintron awoke, Sergeant Deyermond helped him out of the car.

During this process, which took only minutes, Trooper Gaudet

noticed a gun protruding from Cintron’s pocket.        Once the gun was

secured, Cintron was arrested and taken back to the station where

he made some incriminating statements.         Cintron was ultimately

charged with being a felon in possession of a firearm.

          In   July   of   2008,   Cintron’s   first    court-appointed

attorney filed a motion to suppress the gun and the statements

that Cintron made at the station.        In support of the motion,

court-appointed counsel filed an affidavit sworn to by Cintron

stating that he had not consented to the roadside stop or search.

Three days after the motion to suppress was filed, Cintron’s

second lawyer – this one retained – entered an appearance in the

case.2



     2
      Cintron had three attorneys during the course of the
underlying proceedings: the first was a court-appointed attorney;
the second was counsel Cintron retained; and the third was the
federal defender appointed to represent Cintron after his retained
counsel withdrew. The opinion will refer to the lawyers as “court
appointed,” “retained,” and “federal defender” to help the reader
keep the players straight.

                                   -3-
            On August 15, 2008, the government filed its opposition

to the motion to suppress, attaching, among other items, Trooper

Browning’s arrest report and Trooper Gaudet’s Supplemental Report

and affidavit.          Trooper Browning’s arrest report stated that

while he was talking to the driver of the car, Trooper Gaudet and

Sergeant Deyermond were helping Cintron out of the car.                      Trooper

Browning heard Trooper Gaudet yell “gun!” and saw Trooper Gaudet

take a gun out of Cintron’s jacket pocket.                   In his report and

affidavit, Trooper Gaudet gave an account that was consistent

with Trooper Browning’s.            Trooper Gaudet saw a gun coming out of

Cintron’s left jacket pocket as Cintron started to get out of the

car.   Trooper Gaudet ran over to the passenger side of the car

and grabbed the gun from Cintron’s pocket.

            On     November       26,   2008,    Cintron’s    retained        counsel

averred in an affidavit that a drug recognition expert evaluated

Cintron   at      the   station    after   his    arrest   and    concluded     that

Cintron     was    under    the     influence     of   a   narcotic       analgesic.

Retained counsel argued that Cintron could not have voluntarily

waived his Miranda rights given his impaired condition.

            On     December     15,     2008,    the   district      court    denied

Cintron’s      motion      to   suppress    the    gun     without    a      hearing,

concluding that the seizure was justified under the plain view

doctrine because the affidavits established that Trooper Gaudet

                                         -4-
saw   the    gun   protruding     from   Cintron’s      pocket      before   it   was

seized.      See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971).

The district court scheduled an evidentiary hearing to determine

whether      Cintron   had   voluntarily       waived    his     Miranda     rights.

During the hearing, Officer Scott Frost, the drug recognition

expert who evaluated Cintron at the police station, testified

about Cintron’s condition.         The district court judge found:

              During questioning by Frost, Cintron admitted
              to snorting a line of heroin earlier that
              morning and Frost observed a number of
              characteristics that he considered consistent
              with heroin use.       During the interview
              Cintron   repeatedly   fell  asleep   between
              questions and fell back against the wall or
              to the side.     Cintron also had difficulty
              keeping his eyes open and his speech was
              slurred.     According   to  Frost,   Cintron
              physically appeared “out of it.”

United States v. Cintron, No. 07-10435-NMG, 2009 WL 924423, at *1

(D. Mass. April 1, 2009).           Concerned about Cintron’s “inability

to    stay    awake,    slurred     speech     and      lack   of     balance     and

coordination,” id. at *3, the district court nevertheless found

that Cintron had knowingly waived his Miranda rights and denied

Cintron’s motion to suppress his statements.3



      3
      The district court focused on the facts that Cintron was
capable of answering questions, that he was attempting to broker a
deal, and that Cintron was familiar with the criminal justice
system having been arraigned on 64 charges as an adult and 19
charges as a juvenile.

                                         -5-
             In June of 2009, pursuant to the Government’s discovery

obligations,      the   Assistant   United    States    Attorney      sent   two

letters      to   Cintron’s   retained       counsel    notifying      him   of

inconsistencies in the troopers’ accounts of the arrest which had

emerged during trial preparations.           Contrary to Trooper Gaudet’s

account that the gun was protruding from Cintron’s left jacket

pocket, both Trooper Browning and Sergeant Deyermond stated that

they observed the gun in Cintron’s right jacket pocket.                Trooper

Gaudet added to his account that after he first observed the gun,

he attempted to enter the driver-side back door to retrieve the

gun and when that was unsuccessful he ran around the car to

assist Sergeant Deyermond.

             In July of 2009, Cintron’s retained counsel withdrew

and an assistant federal defender was appointed.                 In August of

2009, Cintron wrote two letters to the Court in which he claimed

that   his   retained    counsel    had   filed   the   motion   to   suppress

statements without his agreement.          Cintron also told the district

judge that he was not under the influence of drugs at the time of

his arrest.

             The government sent a third letter on August 21, 2009,

this time to the recently appointed federal defender, indicating

that Sergeant Deyermond, after reviewing reports, recalled that




                                     -6-
he observed the firearm in Cintron’s left jacket pocket.4

           On February 25, 2010, the federal defender filed a

motion to reconsider Cintron’s first motion to suppress based on

the changes in the accounts of the police officers.            On February

26, 2010, the federal defender filed a second motion to suppress

the firearm.    In support of both motions, the federal defender

submitted the various police reports describing the stop, the

affidavit of Trooper Gaudet, the government letters, and the

testimony of Trooper Browning at the hearing on Cintron’s first

motion to suppress.    In support of the second motion to suppress,

the federal defender submitted a new affidavit in which Cintron

averred that the gun was in his buttoned right pocket and was not

visible and that the troopers did not discover the gun in his

pocket until after they had frisked him.           The federal defender

also submitted photographs of: 1) Cintron’s jacket; 2) a gun

similar to the one possessed by Cintron; 3) the jacket containing

the gun in a pocket lying on a table; and 4) a model wearing the

jacket   containing   the   gun   in   the   pocket.   The   gun   does   not

protrude from the pocket in either of the latter two photographs.

           The federal defender requested evidentiary hearings on



     4
      The Court will refer collectively to the three letters from
the Assistant United States Attorney to defense counsel as “the
government letters.”

                                   -7-
both motions.          The district court held a non-evidentiary hearing

on the motions on April 15, 2010.                      On April 26, 2010, the

district court issued a memorandum and order denying the motions

and concluding that no evidentiary hearing was necessary.                          Not

persuaded        by   the     federal   defender’s     assertion     that    retained

counsel      had      advanced    a   poor    legal   theory    against     Cintron’s

wishes, the district court refused to treat Cintron’s second

affidavit        as   newly    discovered     evidence.5       The   district   court

judge found that “the timing and circumstances” of Cintron’s

second affidavit were so suspect that he declined to credit it

over       the   officers’       consistent    accounts.        United    States    v.

Cintron, 708 F. Supp. 2d 92, 94 (D. Mass. 2010).                       Finding that

the government letters did not materially alter the troopers’

accounts of the stop, the court found no basis to revisit the

holding that the gun was in plain view before it was seized.                       The

district court concluded that the appointment of new counsel did

not give Cintron the right to a “fresh start toward suppression”


       5
      A district court may grant a motion for reconsideration “if
the moving party presents newly discovered evidence, if there has
been an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a manifest
error of law or was clearly unjust.” United States v. Allen, 573
F.3d 42, 53 (1st Cir. 2009).      Newly discovered evidence that
requires a district court to reconsider its decision is evidence
that could not “in the exercise of due diligence” have been
presented earlier. Emmanuel v. Int’l Bhd. of Teamsters, Local Union
No. 25, 426 F.3d 416, 422 (1st Cir. 2005)).

                                             -8-
and did not explain why Cintron had waited sixteen months to

contest Trooper Gaudet’s account.             Id.

            On appeal, Cintron claims that he made a threshold

showing sufficient to place in doubt the troopers’ account that

they saw the gun before they conducted the frisk, and he argues

that the district court abused its discretion by not holding an

evidentiary hearing on Cintron’s second motion to suppress and

his motion to reconsider his first motion to suppress.

                                   Relevant Law

            A criminal defendant has no presumptive right to an

evidentiary hearing on a motion to suppress.                    United States v.

D’Andrea, 648 F.3d 1, 5 (1st Cir. 2011).                 “Rather, ‘[a] hearing

is required only if the movant makes a sufficient threshold

showing that material facts are in doubt or dispute, and that

such facts cannot reliably be resolved on a paper record.                    Most

importantly,       the   defendant    must    show    that   there   are   factual

disputes which, if resolved in his favor, would entitle him to

the requested relief.’”           United States v. Francois, 715 F.3d 21,

32   (1st   Cir.    2013)   (alteration       in    original)   (quoting   United

States v. Staula, 80 F.3d 596, 603 (1st Cir. 1996)).

            To     obtain    an      evidentiary       hearing,      a   defendant

challenging a warrantless search must make a sufficient threshold

showing that no exception to the warrant requirement applied to

                                        -9-
the search.        Allen, 573 F.3d at 51.            “The burden is on the

defendant    to    allege    facts,      ‘sufficiently   definite,     specific,

detailed, and nonconjectural, to enable the court to conclude

that   a   substantial      claim   is    presented.’”       United    States   v.

Calderon, 77 F.3d 6, 9 (1st Cir. 1996)(quoting United States v.

Lewis, 40 F.3d 1325, 1332 (1st Cir. 1994)). “[T]he decision of

whether to conduct an evidentiary hearing is left to the sound

discretion of the district court.               On appeal, our review is for

an abuse of that discretion.”             United States v. Brown, 621 F.3d

48, 57 (1st Cir. 2010) (internal citation omitted).

                                      Analysis

            To obtain an evidentiary hearing on his second motion

to suppress, Cintron was required to demonstrate specific facts

that plausibly suggested that the troopers did not see the gun in

plain view.       Allen, 573 F.3d at 51.         The district court concluded

that   Cintron     did   not   make      that   threshold    showing    and   that

material facts pertaining to the motion to suppress were not in

dispute.    We agree.

            A.      The   Government       Letters    Were     Not     Materially
                    Inconsistent

            The district court’s denial of Cintron’s first motion

to suppress the gun relied on the fact that Trooper Gaudet saw

the gun protruding from Cintron’s pocket before he seized it.                   In



                                         -10-
deciding     Cintron’s       second   motion        to   suppress    and    motion       for

reconsideration, the district court reasonably concluded that

none    of   the    changes     in    the    troopers’      stories       during    trial

preparation        altered    this    dispositive         fact.      Trooper       Gaudet

consistently said that he saw the gun in Cintron’s left jacket

pocket when Cintron was getting out of the car.                      Neither Trooper

Gaudet’s later statement that he tried to open the back driver-

side door before he ran around to the other side of the car nor

Trooper Browning’s recollection that Trooper Gaudet called out

“gun!” when he was on the passenger side of the car undermines

Trooper Gaudet’s recollection that he saw the gun before Cintron

was frisked.

             Sergeant        Deyermond        and        Trooper     Browning        both

corroborated Trooper Gaudet’s recollection that he ran over to

the passenger side to help Sergeant Deyermond pull Cintron out of

the car and grabbed the gun then.                  As for the confusion about the

location of the gun, Trooper Browning qualified his statement

during trial preparation that he “did not remember exactly” but

that he thought the gun was in the right pocket.                                 Sergeant

Deyermond initially thought the gun was in the right pocket, but

after   reviewing      the     reports,       recalled     that     the    gun     was    in

Cintron’s left pocket.           Considering that Cintron’s arrest took

minutes, and the trial preparation occurred nineteen to twenty

                                            -11-
months after the arrest, the inconsistencies in the troopers’

stories were understandable and immaterial.

            B.     Cintron’s Second Affidavit and Photos

            The district court reasonably concluded that Cintron’s

affidavit was untimely and not credible.

            1.     The Timing and Circumstances

            The district court rejected Cintron’s second affidavit

as a last-minute, self-serving change in strategy.                            Cintron’s

version    of    the   arrest    was     always   available       to   him,    and    the

district court made no error in rejecting this account which was

raised so late in the game. See United States v. Allen, 573 F.3d

42, 54 (1st Cir. 2009).

            Cintron     blames     his    retained      counsel    for      failing    to

contest Trooper Gaudet’s account of the arrest and for pursuing a

futile strategy of seeking to suppress his statements.                                The

record is insufficiently developed for us to meaningfully review

retained     counsel’s       strategy      and    the    effectiveness         of     his

representation,        and      Cintron     has    not     formally         raised     an

ineffective      assistance      of    counsel    claim.      See,     e.g.,     United

States v. Theodore, 354 F.3d 1, 3 (1st Cir. 2003) (“We note that

the almost universal rule . . . is that petitioners cannot raise

ineffective assistance of counsel claims for the first time on

direct     review,     the   concern      being    that    there       is     often    no

                                          -12-
opportunity to develop the necessary evidence where the claim is

first raised on direct appeal.”).

          Cintron cites his letters to the district court judge

in August of 2009 as evidence that his retained counsel acted

against his wishes in not presenting Cintron’s account of the

arrest to the district court.        In his letters to the judge,

Cintron complains about his retained counsel’s performance, but

he does not claim that the gun was buttoned in his right-hand

pocket and not visible to the police.      Cintron never claims that

the police violated his constitutional rights.         What he does

claim is that he was innocent.

          The federal defender claims that Cintron’s account of

the gun’s seizure has been the same since the day they first met.

But the federal defender came on board after Cintron’s first

attempt at suppression had failed.      To point out that Cintron has

been consistent since he learned that his first strategy failed

is very different from saying that Cintron has been consistent

since the date of his arrest.    It was reasonable for the district

court to view Cintron’s affidavit with skepticism and to discount

the federal defender’s representation that Cintron’s story has

been consistent throughout their relationship.

          The district court is not limited to the four corners

of the defendant’s motions, affidavit, and exhibits in assessing

                                 -13-
the weight to give the defendant’s affidavit.                    The district court

can   rely   on   information         that    it    has   obtained     from   previous

motions and from other sources, including the defendant’s letters

to the court, in determining whether an affidavit should be

credited.      See Awon v. United States, 308 F.3d 133, 141 (1st Cir.

2002) (district court correctly rejected convicted co-defendant’s

post-trial      affidavit     averring        unbelievable       story   exonerating

defendant      because    affidavit      was       “lacking     in   credibility    for

reasons apparent on its face and from the record”); see also

Brown,   621    F.3d     at   58-59    (district       court    appropriately      gave

minimal weight to affidavit from defense investigator containing

indirect witness testimony conflicting with consistent officer

testimony).

             Cintron’s ability to perceive and remember the seizure

of the gun was suspect.          The evidence before the district court,

including the testimony of the drug recognition expert at the

hearing on Cintron’s first motion to suppress, strongly suggested

that Cintron was severely impaired when the gun was seized.                        The

district court was not required to turn a blind eye to the

testimony      that    Cintron    was        difficult     to    rouse   when    first

encountered, that he admitted to using heroin that morning, and

that he was showing multiple signs of being under the influence

of heroin.      The defendant’s self-serving claim in the August 2009

                                         -14-
letter to the judge that he was not impaired at the time of his

arrest, despite all the evidence to the contrary, only undermined

the credibility and reliability of his second affidavit wherein

he recounted details of his arrest.                 Here, the district court had

good reason to question Cintron’s ability to perceive his own

arrest and had a basis to doubt Cintron’s credibility in his

second affidavit.

             2.   The Photographs

             Cintron argues that even without his second affidavit,

the   photographs       of    the   physical       evidence   created   a     material

dispute of fact about whether the police saw the gun in plain

view before they frisked him.            But the photographs of the jacket,

which demonstrate that the gun could fit completely within a

buttoned pocket if the person wearing the jacket was standing

upright, do not establish that Trooper Gaudet could not have seen

the gun sticking out of the top of the pocket when Cintron was

draped   across   the        backseat   and    then    roused    from   the    car   by

Sergeant Deyermond.            The photographs do not create a material

dispute of fact.

                                     CONCLUSION

             Even considered cumulatively, Cintron’s evidence was

insufficient to demonstrate that material facts were in dispute

and   that   he   was    entitled       to    an   evidentiary    hearing      on    his

                                         -15-
motions.     Without   credible    evidence   contradicting   Trooper

Gaudet’s consistent account that he saw the gun in plain view,

the district court did not abuse its discretion in denying an

evidentiary hearing on Cintron’s motion to reconsider and second

motion to suppress.

           The judgment below is affirmed.




                                  -16-
