
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No.  95-1882                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  STEPHEN J. STAULA,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                              _________________________                                        Before                       Selya, Stahl and Lynch, Circuit Judges.                                               ______________                              _________________________               Martin K. Leppo for appellant.               _______________               Todd  E.  Newhouse, Assistant  United States  Attorney, with               __________________          whom Donald K. Stern,  United States Attorney, was on  brief, for               _______________          appellee.                              _________________________                                    March 29, 1996                              _________________________                    SELYA,  Circuit Judge.   A  federal grand  jury charged                    SELYA,  Circuit Judge.                            _____________          defendant-appellant  Stephen J.  Staula, in  relevant part,  with          being a felon in possession of a firearm (count 1) and ammunition          (count 2), and with receiving a stolen firearm (count 3).  See 18                                                                     ___          U.S.C.   922(g)(1), (j).   Following a five-day trial,  the petit          jury convicted the  appellant on  all three counts.1   The  court          imposed an incarcerative sentence.                    In this appeal,  Staula labors to convince us  that the          district court thrice erred in denying his motions to (i) dismiss          the  indictment  for  want  of  a  speedy  trial,  (ii)  suppress          evidence, and (iii)  direct judgment  of acquittal.   We are  not          persuaded that any error occurred.                                          I                                          I                                          _                                      Background                                      Background                                      __________                    We sketch the facts in the light most hospitable to the          jury's verdict.   See United States  v. Ortiz, 966 F.2d  707, 711                            ___ _____________     _____          (1st Cir. 1992), cert. denied, 506 U.S. 1063 (1993).                           _____ ______                    During the early evening of September 13, 1993, officer          David  Tyrie of  the Hanover police  department stopped  a pickup          truck for patent violations of the state motor vehicle code.  See                                                                        ___          Mass. Gen. L. ch. 90,   6 (requiring, inter alia, a front license                                                _____ ____          plate on  every commercial  vehicle); id.    7 (requiring,  inter                                                ___                   _____          alia, operable brake  lights).   The appellant proved  to be  the          ____          driver  and registered  owner  of the  ill-equipped  vehicle.   A                                        ____________________               1The indictment  also charged  the appellant with  two drug-          related  offenses.  The jury acquitted him on these counts and we          eschew any further reference to them.                                          2          female  companion named  Myriah Morse,  later to  become Staula's          wife, occupied the passenger's seat.                    Tyrie testified that he smelled burnt marijuana when he          first   approached  the   driver's  side   window  to   demand  a          registration  certificate  and  operator's  license.    He   then          retreated  to  his  cruiser with  the  documents  and  called for          backup.  After  two other officers  arrived, Tyrie revisited  the          vehicle  and  inquired whether  the  occupants  had been  smoking          marijuana.   He also asked whether they  had any marijuana in the          truck.    Both  Staula and  Morse  answered  the  queries in  the          negative.                    Apparently  unconvinced  by  these disclaimers  and  by          Morse's  volunteered  statement  that  she  recently  had  burned          incense in the vehicle, Tyrie  sought the appellant's consent  to          search the truck.   After  having been rebuffed,  he ordered  the          appellant  to  alight,  searched the  driver's  side  of the  cab          (discovering no contraband),  directed Morse to alight,  searched          the other side of the cab, and found two bags of marijuana behind          the passenger's seat.  Arrests followed all around.                    Prior  to  impounding the  vehicle,  Tyrie conducted  a          standard inventory  search and discovered a  fully loaded handgun          (which had been reported as stolen in November of 1992) and a box          of  ammunition  behind  the  passenger's  seat.     The  gun  and          ammunition  were  located within  inches  of  the marijuana,  and          within easy reach of the driver.  The weapon's hammer was cocked.                    At trial,  the appellant  built his defense  around the                                          3          assertion that he lacked any knowledge of the drugs and weaponry.          To this end, he presented the testimony of a friend, Ralph Nason,          who  claimed that he purchased  the marijuana and,  in a separate          transaction,   accepted   the   gun   and   ammunition  from   an          acquaintance; borrowed the pickup  truck from Staula on Saturday,          September 11; placed the  described articles in the vehicle;  and          then drove to  New Hampshire.   Nason  supposedly remained  there          (with the truck  and the  contraband) until Sunday  evening.   He          claims  to have  returned the  truck to  the appellant  on Monday          (only minutes before Tyrie made the traffic stop).                                          II                                          II                                          __                                       Analysis                                       Analysis                                       ________                                          A.                                          A.                                          __                                 The Speedy Trial Act                                 The Speedy Trial Act                                 ____________________                    The appellant's principal claim is that the prosecution          did not  bring him to trial  within the time frame  prescribed by          the  Speedy  Trial Act,  18 U.S.C.      3161-3174 (the  Act), and          concomitantly, that  the  district court  therefore  should  have          dismissed the indictment.   In this case, the speedy  trial claim          involves a straight  question of law engendering  de novo review.          See  United States v. Rodriguez,  63 F.3d 1159,  1162 (1st Cir.),          ___  _____________    _________          cert. denied, 116  S. Ct. 681 (1995);  see also United States  v.          _____ ______                           ___ ____ _____________          Gallo,  20 F.3d  7,  11 (1st  Cir.  1994) (explaining  that  pure          _____          questions of law demand plenary appellate review).                    The  baseline premise  of the  Act is  its requirement,          embodied  in 18 U.S.C.   3161(c)(1), that a defendant is entitled                                          4          to  be tried  within seventy  days of  his indictment  or initial          appearance before  a judicial  officer (whichever  first occurs).          See  United States  v. Hastings,  847 F.2d  920, 924  (1st Cir.),          ___  _____________     ________          cert. denied, 488 U.S.  925 (1988).  The premise  cannot be taken          _____ ______          literally, however, for the Act contemplates that certain periods          of time will  be excluded from the computation.   See 18 U.S.C.                                                              ___          3161(h).  An  inquiring court  therefore must  follow a  two-step          process.   First,  the court  must do  the basic  mathematics and          determine the aggregate time elapsed  awaiting trial.  Second, it          must  determine  how  many  days  should  be  excluded  from that          ultimate sum.  See United States v. Sepulveda, 15 F.3d 1161, 1193                         ___ _____________    _________          (1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994).                           _____ ______                    Here,  the  salient dates  and  events are  essentially          undisputed.  The speedy trial clock began to  tick on October 26,          1994  (the date  of arraignment).   See  id. (describing  date of                                              ___  ___          inception  of speedy trial period).  The clock stopped ticking on          March 16, 1995 (the date on which the appellant  filed his motion          to dismiss under the Act).  See United States v. Connor, 926 F.2d                                      ___ _____________    ______          81,  84 (1st  Cir. 1991)  (holding that  "a motion  for dismissal          [under  the  Act] is  effective only  for  periods of  time which          antedate the filing  of the  motion").  Excluding  March 16,  see                                                                        ___          Rodriguez, 63 F.3d at 1163-64 (reiterating that the date on which          _________          a motion is filed  is not counted), the aggregate  period amounts          to 140 days.                    We now take the second  step in the pavane.  This  step          begins and ends  with the  appellant's motion to  suppress.   The                                          5          appellant  served   this  motion   on  November  17,   1994,  and          simultaneously requested an evidentiary  hearing.  The government          filed  an opposition.    The magistrate  judge  assigned to  hear          pending motions reserved the  suppression motion for the district          judge.  On March 22, 1995,  Judge Tauro discussed the motion with          counsel but  made no ruling.   On the day trial  began (April 18,          1995),  the  judge  denied  the  motion from  the  bench  without          convening an evidentiary hearing.   He also denied the  motion to          dismiss primarily on the basis that the period between the filing          of  the suppression motion (November 17, 1994) and what he termed          the  "preliminary hearing" thereon  (March 22,  1995) constituted          excludable time under the Act.                    The appellant challenges this ruling.  He contends that          the brief exchange on March  22 did not comprise a "hearing"  for          purposes  of the Act.   The point is  significant because the Act          provides  that delay  connected with  a pending  pretrial motion,          "from  the filing  of the  motion through  the conclusion  of the          hearing  on, or  other prompt  disposition of,  such motion,"  is          excludable.  18 U.S.C.   3161(h)(1)(F).  For motions that require          a hearing,2 this subsection excludes  the time between the filing          of the motion  and the hearing on that motion,  even if the delay          is  overlong, inexplicable,  or unreasonable.   See  Henderson v.                                                          ___  _________                                        ____________________               2It is often arguable whether a particular motion requires a          hearing.  See generally United States v. Tannehill, 49 F.3d 1049,                    ___ _________ _____________    _________          1052 n.4  (5th Cir.), cert. denied, 116 S. C.t 167 (1995).  Here,                                _____ ______          the   appellant  requested   a  hearing   on  his   motion,  thus          acknowledging that  one was  appropriate.  Consequently,  we need          not discuss  the factors  that determine whether  a given  motion          "requires" a hearing.                                          6          United States,  476 U.S.  321,  329-30 (1986);  United States  v.          _____________                                   _____________          Johnson,  29 F.3d 940, 942-43  (5th Cir. 1994);  United States v.          _______                                          _____________          Clymer, 25 F.3d  824, 830-31  (9th Cir. 1994);  United States  v.          ______                                          _____________          Noone,  913 F.2d 20, 27  n.10 (1st Cir.  1990), cert. denied, 500          _____                                           _____ ______          U.S. 906  (1991).  Thus,  if the  March 22 encounter  comprises a          hearing  within the  purview  of  the  Act,  the  district  court          appropriately excluded  all the  time accrued after  November 17,          1994.                    The Act itself does not  define the term "hearing," and          the case  law on this point  is relatively sparse.   It is clear,          however,  that  due  process  rarely  demands   full  evidentiary          hearings, see Doyle  v. Secretary of HHS, 848  F.2d 296, 302 (1st                    ___ _____     ________________          Cir.  1988)  (collecting  cases),   and  we  are  confident  that          something  less than a  full evidentiary hearing  will suffice to          engage  the gears of    3161(h)(1)(F).  Two  recent Fifth Circuit          cases  are instructive.  In  United States v.  Tannehill, 49 F.3d                                       _____________     _________          1049  (5th Cir.), cert. denied, 116  S. Ct. 167 (1995), the court                            _____ ______          declared  that, at a minimum,  "the term includes  a situation in          which the district court hears argument of counsel and  considers          [those  arguments] prior  to making  its ruling."   Id.  at 1053.                                                              ___          Utilizing  this standard, the court held that a discussion of the          merits  of  the   defendant's  motion  at  the  outset  of  trial          constituted a hearing for purposes of the Act.  See id.                                                          ___ ___                    In United States v. Grosz, ___ F.3d ___ (5th Cir. 1996)                       _____________    _____          [No.  94-10922,  1996 WL  75726], a  brief exchange  concerning a          pending motion  occurred between  the district court  and counsel                                          7          for the  government (in which defense  counsel, although present,          did not  play a part).   See  id. at ___  [1996 WL 75726  at *2].                                   ___  ___          Applying the Tannehill standard, the panel found this abbreviated                       _________          colloquy to be a hearing within the purview  of the Act.  See id.                                                                    ___ ___          at ___  [1996 WL 75726  at *4].   The court  said that a  hearing          occurs whenever  the district  judge discusses  the  merits of  a          motion with  counsel for the party against whom the ruling on the          motion is ultimately rendered.  See id.                                          ___ ___                    In the  case at hand,  the trial court  heard arguments          put  forward by  the appellant's  counsel in  open court,  on the          record; questioned him; and gave him the opportunity to highlight          salient  facts.   The court  then gave  the prosecutor  a similar          opportunity.   In our view,  this give-and-take among counsel and          the court,  notwithstanding its relative brevity,  is the essence          of  what a hearing entails.  And, moreover, there was good reason          for the exchange:   the  appellant had requested  that the  court          take evidence,  and the court  was not in an  optimal position to          rule upon the appellant's  suppression motion until it questioned          counsel and  determined the need for, and  the potential efficacy          of, an evidentiary hearing.                    To say more would be to add hues to a rainbow.  We hold          that  a  hearing is  any  on-the-record  colloquy  in  which  the          district court hears the arguments of counsel and considers those          arguments prior to deciding  a pending motion.  Measured  by this          yardstick, the proceedings on  March 22 constitute a  hearing for          purposes of  18 U.S.C.    3161(h)(1)(F).   It follows  inexorably                                          8          that the district court properly excluded the entire period  from          November 17, 1994 through  March 22, 1995 (a date beyond the date          on  which the  appellant  filed his  motion  to dismiss).3    See                                                                        ___          Henderson, 476 U.S. at 330.          _________                    This  ruling  defenestrates  the  speedy  trial  claim.          Computing  the  total  time  elapsed  between  the  date  of  the          appellant's first appearance and  the date on which he  filed his          motion to  dismiss for  want of  a speedy  trial (140  days), and          subtracting  the  portion of  that  time  excludable due  to  the          pendency of the motion  to suppress (118 days), it  is abundantly          clear  that trial commenced within the time frame mandated by the          Act.                                          B.                                          B.                                          __                                The Motion to Suppress                                The Motion to Suppress                                ______________________                    The objection  to the  district court's  disposition of          the  motion  to  suppress  has both  substantive  and  procedural          aspects.  We discuss them seriatim.                    1.   Probable  Cause.   A police  officer may  effect a                    1.   Probable  Cause.                         _______________          warrantless search of the interior of a motor vehicle on a public          thoroughfare as long as he has probable cause to believe that the          vehicle  contains   contraband  or  other  evidence  of  criminal          activity.   See, e.g., United  States v. Martinez-Molina, 64 F.3d                      ___  ____  ______________    _______________                                        ____________________               3We join the Fifth Circuit,  see Grosz, ___ F.3d at  ___ n.7                                            ___ _____          [1996 WL 75726 at *9], in  warning that we will not permit either          the district court or the  prosecution to jerry-build a "hearing"          in order to thwart  the concinnous operation of the  Speedy Trial          Act.   Here,  however,  the  record  contains  no  hint  of  such          contrivance,  and, for that matter, the appellant has levelled no          such charge.                                          9          719, 726 n.5  (1st Cir. 1995); United States  v. Panitz, 907 F.2d                                         _____________     ______          1267,  1271 (1st Cir. 1990).   In this  instance, the appellant's          asseveration that the police lacked probable cause for the search          elevates hope over reason.                    In  assessing  "whether  the  government  has  made   a          sufficient  showing of  probable  cause, a  reviewing court  must          examine the `totality of  the circumstances.'"  United  States v.                                                          ______________          Nocella, 849 F.2d  33, 39  (1st Cir. 1988)  (quoting Illinois  v.          _______                                              ________          Gates, 462 U.S.  213, 230  (1983)).  On  appeal, this  assessment          _____          entails acceptance  of the lower court's  factual findings unless          those  findings are clearly  erroneous, but  necessitates plenary          review of the lower court's legal conclusions.  See United States                                                          ___ _____________          v. Zapata, 18  F.3d 971,  975 (1st Cir.  1994); United States  v.             ______                                       _____________          Rodriguez-Morales,  929  F.2d 780,  783  (1st  Cir. 1991),  cert.          _________________                                           _____          denied,  502 U.S. 1030 (1992).  Moreover, the law recognizes that          ______          a  vehicle search under this exception may encompass all areas of          the vehicle in  which the  suspected contraband is  likely to  be          found.  See United States v. Maguire, 918 F.2d 254, 260 (1st Cir.                  ___ _____________    _______          1990),  cert.  denied,  499  U.S.  950  (1991).    Applying these                  _____  ______          principles, it is readily  apparent that the court below  did not          err in finding probable cause and ratifying the search.                    Tyrie's   affidavit   asserts  unambiguously   that  he          detected an aroma of burnt marijuana when he first approached the          pickup  truck.   The  case law  is  consentient that  when  a law          enforcement officer detects the  odor of marijuana emanating from          a confined area,  such as  the passenger compartment  of a  motor                                          10          vehicle,  that  olfactory  evidence furnishes  the  officer  with          probable cause to  conduct a  search of the  confined area.   See                                                                        ___          United States v. Johns,  469 U.S. 478, 482 (1985);  United States          _____________    _____                              _____________          v.  Parker, 72 F.3d 1444, 1450 (10th Cir. 1995); United States v.              ______                                       _____________          French, 974 F.2d 687, 692 (6th Cir. 1992), cert. denied, 506 U.S.          ______                                     _____ ______          1066 &  507 U.S. 978 (1993).   Thus, Tyrie had a  right to search          the entire passenger compartment of the pickup truck.  See United                                                                 ___ ______          States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993).4          ______    _______                    The  appellant also  assails  the second  phase of  the          search (during which Tyrie located the gun and ammunition).  That          search was lawful  for three  reasons.   First, the  extent of  a          permissible search is often incremental. See, e.g., United States                                                   ___  ____  _____________          v. Giannetta,  909 F.2d  571, 574,  577 (1st  Cir. 1990).   Here,             _________          Tyrie's  discovery of the  marijuana gave  him probable  cause to          continue  to  hunt  within  the passenger  compartment  for  more          contraband.   See, e.g., Maguire, 918  F.2d at 260.   Second, the                        ___  ____  _______          appellant  cannot seriously  dispute  that when  Tyrie spied  the          marijuana, he had probable cause to arrest the truck's occupants.          See, e.g.,  United States  v. Uricoechea-Casallas, 946  F.2d 162,          ___  ____   _____________     ___________________                                        ____________________               4The appellant's attempt to dilute the  force of these cases          is disingenuous.   He cites  other decisions suggesting  that the          existence of  probable cause to search  the passenger compartment          of a vehicle  does not necessarily confer  a right to search  the          trunk.   See, e.g., Nielsen, 9  F.3d at 1491.   Expanding on this                   ___  ____  _______          theme,  he then  posits that  Tyrie could  not search  behind the          seats in the pickup truck.  The fly  in this ointment is that the          space  behind the seats, in  which Tyrie found  the marijuana, is          part of the truck's passenger area, and no amount of wordplay can          change that fact.  Since  the aroma of marijuana wafted from  the          passenger  area, that region became  fair game for  a drug search          under the automobile  exception to the warrant requirement.   See                                                                        ___          United States v. Ross, 456 U.S. 798, 825 (1982).          _____________    ____                                          11          166 (1st Cir. 1991).  Having lawfully arrested the driver in  the          course of a highway stop, the authorities may search the driver's          vehicle  for contraband.   See New York v.  Belton, 453 U.S. 454,                                     ___ ________     ______          460-61  (1981); United States v.  Reyes-Mercado, 22 F.3d 363, 366                          _____________     _____________          n.4  (1st Cir.  1994).   Under  this rule,  the  second phase  of          Tyrie's search can be  justified as incident to a  lawful arrest.          Third,  when a driver is lawfully arrested and thus disabled from          continuing his  journey, the  Constitution permits the  police to          carry out a routine  inventory examination incident to impounding          the vehicle.  See Zapata, 18 F.3d at 978; United States v. Ramos-                        ___ ______                  _____________    ______          Morales, 981 F.2d 625, 627 (1st Cir.  1991), cert. denied, 113 S.          _______                                      _____ ______          Ct. 2384  (1993).  In this  case, the second phase  of the search          fit comfortably within this integument.                    On any  of  these bases,  the gun  and ammunition  were          themselves the fruits of  a lawful search and, hence,  admissible          at trial.  Accordingly, the district court did not err in denying          the motion to suppress.                    2.  Lack of an Evidentiary Hearing.  The appellant next                    2.  Lack of an Evidentiary Hearing.                        ______________________________          berates the  trial court for two  ostensible procedural blunders:          denying  him an evidentiary hearing on his motion to suppress and          shunning  its responsibilities under Fed. R. Crim. P. 12(g).  The          criticism is unwarranted.                    It  is  apodictic  that  a criminal  defendant  is  not          entitled,  as a  matter of  right, to  an evidentiary  hearing on          every motion that he deigns to file.  See, e.g., Panitz, 907 F.2d                                                ___  ____  ______          at 1273; United  States v.  Pellerito, 878 F.2d  1535, 1545  (1st                   ______________     _________                                          12          Cir. 1989).   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.  See  United States v. Lilly, 983  F.2d 300, 310-11                         ___  _____________    _____          (1st Cir. 1992); Panitz, 907 F.2d at 1273.  Most importantly, the                           ______          defendant  must show  that there  are factual disputes  which, if          resolved in his favor, would entitle him to the requested relief.          See, e.g.,  Lilly, 983 F.2d  at 310-11.   The district  court has          ___  ____   _____          considerable  discretion in  determining  the need  for, and  the          utility of, evidentiary hearings, and we will reverse the court's          denial of an  evidentiary hearing  in respect  to a  motion in  a          criminal  case only for manifest  abuse of that  discretion.  See                                                                        ___          id. at 311.          ___                    In this instance the district court correctly concluded          that  it would  be pointless  to convene an  evidentiary hearing.          The finding of probable cause hinged on Tyrie's statement that he          smelled  burnt marijuana when  he first ventured  near the pickup          truck.   The appellant filed an affidavit in which he stated that          Tyrie did not mention the aroma of marijuana until he returned to          the vehicle a second time.  On this basis, the appellant surmises          that Tyrie's reference to marijuana was pretextual, that is, that          Tyrie did not  actually detect the  fragrance of marijuana,  but,          rather, having learned of the appellant's criminal record when he          checked the appellant's  license and  registration, proceeded  to          concoct the story to justify his desire to search the  truck.  In          the appellant's  view, an  evidentiary hearing would  have smoked                                          13          out the truth.                    The asseveration is profoundly  flawed.  Even accepting          the substance of the appellant's affidavit as true, the affidavit          contains no facts that  contradict the officer's direct statement          that  he smelled burnt marijuana  on his initial  approach to the          truck.   Whether  Tyrie  mentioned the  marijuana  when he  first          detected the  odor is hardly the  point.  It  is fully consistent          with  competent  police  work for  a  lone  officer  to call  for          reinforcements  when  he discovers  that  something  more than  a          routine traffic stop may be in progress.  By not tipping his hand          at  the  outset,  Tyrie  would merely  be  exercising  reasonable          prudence.   Against this backdrop, the  bare assertion of pretext          does  not  create a  factual  conflict sufficient  to  justify an          evidentiary  hearing.  See,  e.g., United  States v.  LaBonte, 70                                 ___   ____  ______________     _______          F.3d 1396,  1412-13 (1st Cir.  1995) (explaining that  a district          court need not convene an evidentiary hearing when presented with          "no  more   than   conclusory  prognostications   and   perfervid          rhetoric").                    The appellant's claim that the district court  violated          Fed.  R. Crim. P.  12(g) is equally  jejune.  That  rule does not          demand  that the trial court hold an evidentiary hearing on every          affected motion.  It  simply requires the court to ensure  that a          verbatim  record  is  made   of  all  proceedings  and  hearings,          including  "such findings of fact  and conclusions of  law as are          made orally."   Fed. R. Crim.  P. 12(g).  The  transcripts of the          March 22 colloquy and the judge's subsequent denial of the motion                                          14          to suppress fully satisfy the strictures of the rule.                                          C.                                          C.                                          __                             Sufficiency of the Evidence                             Sufficiency of the Evidence                             ___________________________                    The  appellant's  sufficiency challenge  implicates all          three  counts of conviction.   In respect  to counts 1  and 2, he          suggests  that there  was  inadequate evidence  to  show that  he          knowingly possessed either the gun or  the ammunition.  Regarding          count  3, he adds that  the government produced  no evidence that          the gun  had travelled in  interstate commerce after  having been          stolen.  We discern no merit in these contentions.                    We  review the  trial court's  denial of  a motion  for          judgment of acquittal de  novo.  See  United States v. Valle,  72                                           ___  _____________    _____          F.3d 210, 217 (1st  Cir. 1995).  The measure by  which we size up          challenges  to evidentiary sufficiency  in a  criminal case  is a          familiar one:   "If the  evidence presented, taken  in the  light          most  agreeable  to  the  government,  is adequate  to  permit  a          rational  jury to find each  essential element of  the offense of          conviction beyond a reasonable  doubt, then the defendant's claim          fails."   Id. at 216.   In pursuing this inquiry,  we resolve all                    ___          credibility  conflicts to the government's benefit, and harmonize          all reasonable  inferences with the  jury's verdict.   See United                                                                 ___ ______          States  v. Taylor,  54 F.3d 967,  974 (1st  Cir. 1995).   By like          ______     ______          token, we concern ourselves with the weight  and persuasive power          of  the   evidence,  not  its   nature,  for  either   direct  or          circumstantial evidence, or any combination thereof,  may suffice          to  defeat a motion for acquittal.  See United States v. Spinney,                                              ___ _____________    _______                                          15          65 F.3d 231, 234 (1st Cir. 1995).                    1.  Scienter.   Turning  first to counts  1 and 2,  the                    1.  Scienter.                        ________          statute  of conviction, 18 U.S.C.    922(g)(1), requires proof of          three elements:   (1) that  the defendant had  a record of  prior          felonious  conduct,  yet  (2)   knowingly  possessed  a  gun  (or          ammunition),  (3)  in  circumstances that  implicated  interstate          commerce.  See United States v. Powell, 50 F.3d 94, 101 (1st Cir.                     ___ _____________    ______          1995).   The  appellant  concedes that  the government  proffered          sufficient evidence to support findings beyond a reasonable doubt          anent  the first  and third  of these  elements but  disputes the          sufficiency of  the evidence regarding  the second:   his knowing          possession of the firearm  and the ammunition.  His  plaint boils          down to a  plea that the jury  was duty bound to  accept the only          direct testimony on the subject   Nason's averment that he placed          the gun and  ammunition in  the truck, returned  it only  minutes          before the arrest,  and never  called the added  contents to  the          appellant's attention   and not to go beyond it.                    There  are  two  major  problems  with  this  suggested          approach.    First, Nason's  story,  even if  believed,  does not          necessarily exonerate the appellant;  the latter might still have          discovered the  contraband between  the time when  Nason returned          the truck  and Tyrie flagged it  down.  Second, the  jury was not          obliged  to accept  Nason's testimony  in whole  or in  part, but          could instead draw reasonable inferences from the totality of the          circumstances.   See, e.g., United States v. Olbres, 61 F.3d 967,                           ___  ____  _____________    ______          971  (1st  Cir.), cert.  denied, 116  S.  Ct. 622  (1995); United                            _____  ______                            ______                                          16          States v. O'Brien, 14 F.3d 703, 707 (1st Cir. 1994).          ______    _______                    These problems are exacerbated by the other evidence in          the record.   The circumstantial  proof of knowing  possession is          very  strong.  The appellant  was both the  owner and operator of          the vehicle and, from where he sat, he had easy access to the gun          (which seemed ready for immediate use) and the ammunition.  Since          the appellant exercised  dominion and  control over  the area  in          which  the gun  and the  ammunition  were discovered,  see United                                                                 ___ ______          States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993),  the jury          ______    _________          was  at liberty  to  find that  he  was in  knowing  constructive          possession of the weaponry.  See United States v. Wight, 968 F.2d                                       ___ _____________    _____          1392, 1398 (1st Cir. 1992) (holding that "the element of `knowing          possession' under section 922(g)(1) may be established by proving          that the defendant was in constructive possession of a firearm");          see also United States  v. Bergodere, 40 F.3d 512,  518 (1st Cir.          ___ ____ _____________     _________          1994)  (explaining   that  knowledge  may  be   established  from          circumstances  attendant  to   constructive  possession),   cert.                                                                      _____          denied, 115  S. Ct. 1439 (1995).  In short, the jury's conclusion          ______          concerning   the  appellant's  knowing  possession  is  eminently          supportable on this record.                    2.   Interstate Commerce.  The  appellant raises a more                    2.   Interstate Commerce.                         ___________________          focused challenge to his  conviction on count 3.  Bolstered  by a          recent  Ninth Circuit case, United  States v. Cruz,  50 F.3d 714,                                      ______________    ____          719  (9th  Cir.  1995), he  insists  that  under  the statute  of          conviction, 18 U.S.C.   922(j),  it is an element of the  offense          that  the  firearm  travel  in interstate  commerce  after  being                                                               _____                                          17          stolen, and that  the government's evidence  here failed to  nail          down this element.                    The  difficulty with this argument is  twofold.  In the          first  place, we reject the  notion that, to  trigger   922(j), a          firearm must reenter the stream of interstate  commerce after its          theft.   This  court turned  aside a  similar challenge  under 18          U.S.C.   922(g) in United States v. Gillies, 851 F.2d 492, 493-95                             _____________    _______          (1st Cir.),  cert. denied, 488 U.S.  857 (1988), and we  find the                       _____ ______          rationale in  Gillies to  be persuasive.   Thus,  consistent with                        _______          that rationale we hold that, under   922(j), it is  enough if the          weapon floats in  the stream of commerce  at some point prior  to          the  commission of  the  offense of  conviction.   Accord  United                                                             ______  ______          States v. Honaker, 5 F.3d 160, 162 (6th Cir. 1993), cert. denied,          ______    _______                                   _____ ______          114 S. Ct. 1226 (1994).   Because the appellant does not  dispute          that the  firearm travelled in interstate  commerce before coming          to rest in his pickup, he cannot prevail.                    The finishing touch is that there was evidence at trial          that the firearm travelled  interstate as a stolen firearm.   The                                                 ___________________          appellant's own witness, Nason,  swore that he took the  gun with          him  from Massachusetts to New  Hampshire only a  few days before          the police  found the weapon  in the appellant's  possession (and          several years after  the gun  had been reported  stolen).   Thus,          even if post-theft  travel were  an element of  the offense,  the          verdict would not be undercut.5                                        ____________________               5The fact that the evidence of interstate travel was adduced          in the defense case, rather than in the prosecution's case, is of          no consequence.  The  court of appeals may properly  consider all                                          18                                         III                                         III                                         ___                                      Conclusion                                      Conclusion                                      __________                    We need go no further.  Because the  government brought          the appellant to trial within the period prescribed by the Speedy          Trial Act, and  no other  error in the  proceedings appears,  the          judgment below must be          Affirmed.          Affirmed.          ________                                        ____________________          evidence presented when confronting a sufficiency challenge.  See                                                                        ___          United States v. Arache, 946 F.2d 129, 138 (1st Cir. 1991), cert.          _____________    ______                                     _____          denied, 502 U.S. 948 (1992).          ______                                          19
