          United States Court of Appeals
                      For the First Circuit

No. 08-2253

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        WILLIAM F. BATER,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]


                              Before

                       Lynch, Chief Judge,

                Boudin and Stahl, Circuit Judges.



     Joseph Wrobleski, Jr., by appointment of the court, for
appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, was on brief for appellee.



                         February 4, 2010
           BOUDIN, Circuit Judge.         William Bater was convicted of

being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1),

924(e) (2000), and now appeals.             His arguments are that the

indictment against him should have been dismissed due to prejudice

from delay and that the firearm should itself have been suppressed

as the product of an unlawful search.             We outline the history

briefly,     reserving   details   until    the   individual   claims    are

discussed.

           The rifle that prompted Bater's indictment was seized by

Maine State Police on January 9, 2003, during a visit to Bater's

apartment in North Bridgton, Maine.          The police had visited the

apartment earlier in the day looking for Bater's nephew, Nicholas

Phillips, whom the police were investigating for several burglaries

and an arson.    On returning for a second visit, the police secured

Bater's consent to search the apartment for Phillips.          The search

was conducted by John Hainey, a detective with the Maine State

Police.

           During the search, Hainey discovered under Bater's bed or

mattress a large black case containing a hunting rifle.                 Bater

claims that Hainey had discovered the case while looking under the

bed to see whether Phillips was secreted there and that he (Bater)

had denied Hainey permission to open the case. Hainey's version of

events was that he had seen two BB guns under the bed, had then

asked Bater whether he had any firearms in the house, and that


                                    -2-
Bater had then voluntarily revealed the gun case, which had been

hidden under the mattress.

           Bater was not arrested but was asked for assistance, and

he in turn helped the police locate Phillips who was arrested that

same evening.      A week or two later, agents of the Bureau of

Alcohol,     Tobacco,   Firearms,    and     Explosives    ("ATF")   began

investigating Bater's firearm possession. In an interview with the

ATF in January 2003, Bater said that a woman named Sarah Otis

bought the rifle for her father and later gave it to Bater's wife,

Christina.    This conformed to what Bater told Hainey the day the

gun was found, and to Christina Bater's testimony in subsequent

court proceedings.

           Within the month, the ATF confirmed that the gun had been

sold to Otis and interviewed her.         Otis at first confirmed Bater's

version that she purchased the rifle for her father; later, she

recanted and instead explained she purchased the rifle for Bater at

his request--the position to which she testified at Bater's later

trial.   In April 2003, the ATF interviewed Phillips--who was then

in jail in Maine--about the gun purchase because both Bater and

Otis said that Phillips was present at the time.          According to the

ATF's notes, Phillips corroborated some aspects of Bater's story

but contradicted others.

           During the interview, the agents told Phillips that they

thought he was lying and emphasized that if he lied to the grand


                                    -3-
jury he could be subject to federal charges; Phillips then declined

to talk further with the agents, and Phillips later disappeared and

did not testify during any of the proceedings against Bater.    By

May 2003, the ATF had proof of multiple prior felony convictions

for Bater, and in June 2003, the ATF recommended to the U.S.

Attorney, who had already opened a case file, that Bater be charged

as being a felon in possession of a firearm.   Bater was indeed so

indicted, but not until more than four years later, in September

2007.

          In October 2007, Bater moved to dismiss the indictment

because of prejudicial delay in indicting him and also moved to

suppress the rifle as unlawfully seized.   Following an evidentiary

hearing before a magistrate judge in January 2008, the district

court adopted the magistrate judge's recommendation that both

motions be denied.   Bater was tried in May 2008 and convicted by

the jury, being later sentenced to 204 months in prison.    He now

appeals, claiming that the district court erred in denying his

pretrial motions.

          Bater first argues that the district court erred by not

dismissing the indictment for impermissible delay due to the over

four-year gap between the finding of the firearm by the police

(January 2003) and his indictment (September 2007).    We review a

district court's decision to not dismiss for pre-indictment delay

for abuse of discretion, United States v. DeCologero, 530 F.3d 36,


                               -4-
77 (1st Cir.), cert. denied, 129 S. Ct. 513, 129 S. Ct. 615 (2008),

although the phrase is perhaps more misleading than helpful.1

          Bater's   indictment   occurred   within   the   statute   of

limitations, which is five years for the offense charged, as well

as most federal crimes, 18 U.S.C. § 3282(a); but even so, excessive

pre-indictment delay can sometimes, albeit rarely, violate the

Fifth Amendment's Due Process Clause if the defendant shows both

that the "delay caused substantial prejudice to his right to a fair

trial" and that "the [g]overnment intentionally delayed indictment

. . . to gain a tactical advantage."   United States v. Picciandra,

788 F.2d 39, 42 (1st Cir.), cert. denied, 479 U.S. 847 (1986);

accord DeCologero, 530 F.3d at 78.

          Bater's claim of prejudice is that the delay in indicting

him caused Phillips to be unavailable to testify at trial and that

had Phillips been available, he would have supported Bater's claim

that the rifle had been purchased by Otis and given to Bater's wife

as her own possession.   The first assertion rests on conjecture;

the second is debatable at best.   But even if both were true, the

claim would still fail because there is no evidence that the



     1
      Although suggesting great latitude, "abuse of discretion" has
this meaning only where the issue invites it--usually in applying
a general standard to specific facts (the test being essentially
one of reasonableness); but (confusingly) "abuse of discretion" is
used as well to embrace mistakes on abstract issues of law
(reviewed de novo) and errors of fact (for which clear error is the
customary test). See Rogers Edwards, LLC v. Fiddes & Son Ltd., 427
F.3d 129, 132 (1st Cir. 2005).

                                 -5-
government delayed the indictment to deprive Bater of Phillips'

testimony and this alone defeats the due process claim.

           The government says that its lawyers in the Maine U.S.

Attorney's office were occupied with other matters, admitting that

better track should have been kept of the case.    Obviously it is

undesirable that indictment be delayed when all the evidence is in

hand and no good reason for deferral exists; this is so for

multiple reasons too obvious to need recounting.   But the statute

of limitations is the principal outer limit, United States v.

Lovasco, 431 U.S. 783, 789 (1977), and the due process claim under

Supreme Court precedent is aimed only at deliberate misconduct by

the prosecutor (or at least something very close to that), id. at

795 & n.17; United States v. Marion, 404 U.S. 307, 324 (1971).

           Here, Bater has no proof whatever that the prosecutors'

delay was in any respect prompted by a wish to deprive Bater of

Phillips' help, if help it were.       The government itself made

efforts to find Phillips in 2006 to testify before the grand jury.

Bater complains that the police drove Phillips away by threatening

him with perjury, but this has no visible connection with the delay

in indictment. Also, there is no indication that the police wanted

him to flee, and Hainey and another agent both said that he had not

been considered a flight risk.    It is thus superfluous that the

police said that they customarily warn witnesses of the risk of

perjury.


                                 -6-
              Bater says that the prosecutors were at least reckless,

itself    a    chameleon     term   sometimes   used    to       suggest    knowing

indifference     to   risk    and   sometimes   merely       a    high     level   of

negligence.     United States v. Gonsalves, 435 F.3d 64, 70 (1st Cir.

2006).     But nothing in the circumstances of this case suggests

recklessness even under the more broader conception of the term.

At best, the prosecutors had other more pressing cases (which is

what they say), and at worst, the case merely slipped through the

cracks.       If there is more, it was Bater's burden to show it.

United States v. Stokes, 124 F.3d 39, 47 (1st Cir. 1997), cert.

denied, 522 U.S. 1139 (1998).

              Although this is enough to dispose of the due process

claim, other required elements of such a claim are also lacking or

doubtful.      As to causation, it is unclear exactly when Phillips

left Maine or otherwise concealed himself.             Short of indicting and

trying Bater while Phillips was being held in jail--as he was when

interviewed in April 2003--his presence could hardly be guaranteed,

and Bater provides no reason to think that indicting Bater sooner

rather than later would have decreased the risk of Phillips'

absence.      See Stokes, 124 F.3d at 47.

              Even assuming that Phillips had testified, it is not

clear just what he would have said or how much it would have helped

Bater.    Based on the ATF's account of its interview with Phillips,

Bater claims that had Phillips testified, he would have confirmed


                                       -7-
Christina Bater's testimony that Otis gave the rifle to Christina;

but Otis herself testified that she bought the rifle for Bater, and

the jury credited Otis rather than Christina, who had reason to

protect her husband.   One might doubt that support from Phillips,

Bater's nephew and himself a felon, would have made a difference.

See, e.g., United States v. Kenrick, 221 F.3d 19, 33 (1st Cir.),

cert. denied 531 U.S. 961, 531 U.S. 1042 (2000); United States v.

McMutuary, 217 F.3d 477, 482 (7th Cir.), cert. denied, 531 U.S.

1001 (2000).

          Bater's second line of argument on appeal is to challenge

the denial of his motion to suppress the rifle on grounds of a

Fourth Amendment violation.   In reviewing motions to suppress, we

review legal determinations de novo, but factual findings for clear

error, United States v. Melendez, 301 F.3d 27, 32 (1st Cir. 2002),

and will uphold a lower court's denial of a motion to suppress so

long as "any reasonable view of the evidence supports it," United

States v. Mendez-de Jesus, 85 F.3d 1, 2 (1st Cir. 1996).

          It is undisputed that Bater initially consented to a

search only for Phillips, which at first limited the permissible

scope of the search.   Florida v. Jimeno, 500 U.S. 248, 251 (1991).

But on Hainey's account, Bater when questioned admitted to having

a gun in the house and showed Hainey the gun case.    Bater simply

denies that this is what happened.    He does not claim, although




                                -8-
perhaps he might have, that tendering the case was not itself an

implied consent to Hainey to open it and secure the weapon.

              Bater gave a quite different version of events, as

already recounted, but the magistrate judge and the district judge

credited Hainey.      Bater attacks this as clear error, but none of

his       arguments--and   he   makes     several--establish   that   the

factfinders' conclusion was clear error.2            Thus, we need not

consider the government's claim that Bater has no standing to

contest the seizure since he denies owning the gun or the district

court's alternative ground of disposition that even on Bater's own

account, the plain view doctrine applied.

              Finally, Bater argues the magistrate judge was biased

against him, and so says the magistrate's opinion is entitled to

less deference.       As evidence of bias, he points primarily to

comments the magistrate judge made about the efforts of Bater and

his attorney to track down Phillips.        But these comments were in a

single footnote in the decision.          The entirety of the magistrate

judge's report does not support Bater's claim of bias, and, anyway,




      2
      For example, Bater says that he would not have admitted
owning a gun since he was a convicted felon; but once the question
was asked, he might well have thought discovery inevitable and
sought the benefit of cooperation. Bater also says that if the gun
case were produced from under the mattress (as Hainey claimed),
Hainey would have noticed a lump in the bed, which he denied
seeing; but this depends on the location and size of the lump,
about which we know nothing.

                                    -9-
the final word was that of the district judge, who did not adopt

the footnote Bater challenges.

          Affirmed.




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