

                      [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]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.  A jury found defendant-appellant                    SELYA, Circuit Judge.                                        

Eric  Gray Snyder  guilty of  being a  felon in  possession of  a

loaded firearm,  in violation of  18 U.S.C.   922(g)(1).   Snyder

appeals.  We affirm his conviction.1

          The appellant  has  cultivated a  hothouse  of  issues.

Some  are  hardier  than  others.   We  address  seven  of  them,

rejecting the remainder    all of which are  patently meritless  

without editorial  comment.   We discuss the  facts of  the case,

insofar  as necessary,  in  connection  with  our  discussion  of

particular issues.

          1.   The  Events  of  January 8-10.    The  appellant's                    1.   The  Events  of  January 8-10.                                                      

principal Fourth Amendment claim is that the Boston police lacked

reasonable  suspicion  to  detain  him on  January  8,  1995, and

likewise lacked probable cause to arrest him on January 10, or to

search a locked briefcase in the trunk of his car coincident with

the arrest.  On  this basis, he contends that the  district court

erred in refusing to suppress  evidence obtained during and after

the  stop,  arrest, and  search.   We  review de  novo  the trial

court's  determinations  of  reasonable  suspicion  and  probable

cause, but defer to the trial court's subsidiary findings of fact

(accepting those  findings unless  they  are clearly  erroneous).

See United States v. Young, 105 F.3d 1, 5 (1st Cir. 1997).                                    

          The  governing  legal  standards are  familiar.    "[A]

                                                  

     1In  a  separate cross-appeal,  No. 97-1233,  the government
challenges the district  court's leniency in sentencing.  The two
appeals were consolidated  for purposes of oral  argument, but we
have elected to write a separate opinion for each.

                                2

police  officer  may  in  appropriate  circumstances  and  in  an

appropriate   manner   approach   a  person   for   purposes   of

investigating  possibly criminal behavior even though there is no

probable cause to make an arrest."  Terry v. Ohio, 392 U.S. 1, 22                                                           

(1968).   Such  an investigatory  stop  requires only  reasonable

suspicion, based on "specific and articulable  facts," id. at 21,                                                                    

that,  viewed  through the  eyes  of  a  prudent police  officer,

warrant  the  intrusion.   Like  reasonable  suspicion, "probable

cause  is  a  fluid  concept     turning  on  the  assessment  of

probabilities  in  particular  factual contexts."    Illinois  v.                                                                       

Gates,   462  U.S.  213,  232  (1983).    This  "totality-of-the-               

circumstances" approach "recognize[s] the  value of corroboration

of  details of an  informant's tip  by independent  police work."

Id. at 241.             

          We need  not dwell  on the  events of  January  8.   It

suffices to say that the  district court's findings, made after a

three-day  evidentiary hearing,  are  plainly  supportable.   The

record,  fairly read,  conduces  to  a  finding that  the  police

protagonist,  Officer Doogan, had  reasonable suspicion, based on

specific  and   articulable  facts,  sufficient   to  justify   a

relatively brief detention.

          While we  dwell  at greater  length  on the  events  of

January  10, we  are  satisfied  that  a  m lange  of  adequately

corroborated information and circumstances generated the probable

cause  necessary  for Doogan  to  arrest  Snyder  and search  his

vehicle on that date.  We explain briefly.

                                3

          Snyder was not a stranger to Doogan, who had some prior

suspicions about Snyder's involvement in nefarious activities (as

witness the detention of January 8).  Doogan had learned,  by way

of a tip  from an unnamed informant,  that on January  9, Snyder,

driving  a black  Honda, had  been in  possession of  a briefcase

containing a  handgun.2   On January 10,  Doogan received  a page

from John Hawk, an informant  who had occasionally worked for him

in the  past.  Doogan  telephoned Hawk, who reported  that Snyder

had  just robbed  him at  gunpoint, stolen  a quantity  of Valium

tablets, and  sped off in  a black  Honda accompanied by  a known

criminal (Diaferio).   Hawk also  said that the men  were heading

for Roslindale.   Doogan  knew that Diaferio  lived at  17 Murray

Hill Road, Roslindale, a known drug haven that had figured in the

January 8 detention.  Believing that the men were likely  to turn

up at 17 Murray Hill  Road, Doogan arranged a police surveillance

at that address.   Shortly thereafter, Snyder arrived,  driving a

black Honda and accompanied  by Diaferio.   He parked the car  on

the street.  At  this point, the police had enough information in

support of Hawk's report to establish probable cause that Snyder,

a previously convicted  felon, had committed a crime  and that he

possessed not only the avails of the robbery but also a handgun.

          The officers  converged on Snyder and Diaferio, frisked

the two men,  and found no weapons.  They then searched the black

                                                  

     2Another  detective  passed  this  tip   to  Doogan,  having
garnered it from an informant  who worked with the federal Bureau
of Alcohol,  Tobacco, and  Firearms and  the Massachusetts  State
Police.

                                4

Honda.   The vehicle's trunk  yielded a briefcase.   Doogan shook

the briefcase  and felt something  heavy inside it.   When Doogan

pried  open the  corner  of  the locked  briefcase,  he saw  what

appeared to  be a  gun.   Doogan then  forced the  lock open  and

confiscated  a  fully  loaded  Colt  semi-automatic  .32  caliber

pistol.  The police arrested Snyder and took him into custody.  A

later search  of his  person at  the station  house turned up  26

Valium tablets in his pants pocket.

          The  search was  lawful.   Snyder parked  his car  on a

public highway.   A warrantless  search is justified even  in the

case of a stationary vehicle parked on a public road based on its

inherent mobility and the reduced expectation of privacy afforded

to  vehicles.   See California  v. Carney,  471 U.S.  386, 392-93                                                   

(1985).   Thus,  under  a  recognized  exception  to  the  Fourth

Amendment, a police  officer may search such a  vehicle without a

warrant if there  is probable cause to  believe that a crime  has

been  committed  and  that  contraband  or  evidence  of  illegal

activities will  be found there.   See Carroll v.  United States,                                                                          

267 U.S.  132, 153-54 (1925);  United States v. Panitz,  907 F.2d                                                                

1267,  1271 (1st  Cir. 1990).   By the  same token,  a diminished

expectation of  privacy extends  to personal  property within  an

automobile.   If the police have  probable cause to search a car,

they also may inspect the interior of any closed container within

it that reasonably might be thought to contain a proper object of

the  search.   See California  v. Acevedo,  500 U.S.  565, 579-80                                                   

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

                                5

          These principles are dispositive  here.  As  previously

indicated, Officer  Doogan had probable  cause to believe  that a

crime had been  committed and that  a search of the  Honda likely

would produce  evidence of it  (i.e., the Valium tablets  and the

gun).  It follows that  Doogan had a right not only to search the

Honda  for the  gun, but  also  to search  the briefcase  for it.

Accordingly,  the  district court  did  not  err  in denying  the

appellant's motion to suppress.

          2.    Sufficiency  of  the  Evidence.    The  appellant                    2.    Sufficiency  of  the  Evidence.                                                        

challenges  the sufficiency  of the  government's proof,  arguing

that the  evidence  adduced  cannot  support a  finding  that  he

knowingly possessed the  firearm.  This argument  is procedurally

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

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

motion for judgment  of acquittal are  deemed waived on  appeal).

There  is,  of course,  an  exception  for  convictions that  are

"clearly and  grossly unjust,"  id. at  1207, but  that exception                                             

does not apply here.

          Leaving procedural default to one side, the standard by

which sufficiency challenges are reviewed is straightforward:

          An appellate court plays a very circumscribed
          role  in  gauging  the  sufficiency  of   the
          evidentiary foundation upon  which a criminal
          conviction  rests.    The  court  of  appeals
          neither   weighs  the   credibility  of   the
          witnesses nor attempts  to assess whether the
          prosecution  succeeded  in  eliminating every
          possible   theory    consistent   with    the
          defendant's innocence.   Instead, its task is
          to   canvass   the   evidence   (direct   and
          circumstantial) in  the light  most agreeable
          to  the prosecution  and decide  whether that

                                6

          evidence, including all  plausible inferences
          extractable  therefrom,  enables  a  rational
          factfinder  to conclude  beyond a  reasonable
          doubt  that   the  defendant   committed  the
          charged crime.

United  States  v.  Noah,  130  F.3d 490,  494  (1st  Cir.  1997)                                  

(citations  omitted).   The evidence  in this case  easily passes

muster under the Noah test.  After all, the standard demands that                               

a reviewing court  resolve all credibility conflicts in  a manner

compatible with the  verdict.  See United States  v. Santiago, 83                                                                       

F.3d 20, 23  (1st Cir. 1996).   Here, a rational jury  could have

chosen to  believe Hawk and  therefore could have found  not only

constructive possession, but also actual possession.

          3.  Exculpatory  Evidence.  The appellant says that the                    3.  Exculpatory  Evidence.                                             

government failed  to disclose certain  exculpatory evidence,  in

violation of its  duty under Brady  v. Maryland, 373 U.S.  83, 87                                                         

(1963).  This contention was  never raised in the district court;

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

in fact  was made  known to the  appellant before  or during  the

trial.   Consequently, his  complaint is for  delayed disclosure,

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

prejudice stemming from the delay.   The claim of error therefore

fails.  See  United States v. Sepulveda, 15 F.3d  1161, 1178 (1st                                                 

Cir. 1993).

          4.   Jury Instructions.   The appellant  calumnizes the                    4.   Jury Instructions.                                          

district  court's   instruction  to  the  jury   on  constructive

possession.  The challenged instruction is virtually identical to

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

                                7

(1st Cir. 1997).  Here,  like in Booth, the defendant interjected                                                

no contemporaneous objection  to the instruction, and  our review

is for plain error.  See id.                                      

          In Booth, we  concluded that the language  used, though                            

infelicitous,  did  not  require reversal.    We  reach  the same

conclusion here.  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.    The   Summation.    The  appellant   accuses  the                    5.    The   Summation.                                         

prosecutor  of committing  three sins  in the  course  of closing

argument:   improper  vouching;  commenting upon  the defendant's

right  to  remain  silent;  and  commenting  upon  facts  not  in

evidence.  The appellant's trial counsel did not object to any of

the remarks   and for good reason.  While all three practices are

to be condemned, none of them occurred here.   We add only that a

defendant who  fails to lodge a contemporaneous  objection to the

prosecution's  summation  is  in a  perilously  poor  position to

complain that  a seemingly appropriate  comment conceivably could

have been  taken by  jurors in  some other  (improper) way.   See                                                                           

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

          6.    Estrella.    During  the  sentencing  phase,  the                    6.    Estrella.                                  

district court  applied this  court's recent  decision in  United                                                                           

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

that Snyder's prior  criminal record rendered him  subject to the

                                8

provisions of the Armed Career  Criminal Act.  The appellant asks

us to  reconsider Estrella, but  offers no new reasons  for doing                                    

so.  We  have held before,  and today reaffirm, that  prior panel

decisions  are binding  upon  newly  constituted  panels  in  the

absence of  supervening authority.   See United States  v. Objio-                                                                           

Sarraff, 108 F.3d  421, 421 (1st Cir. 1997)  (per curiam); United                                                                           

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

v.  Wogan, 938 F.2d  1446, 1449  (1st Cir.  1991).   The district                   

court  appropriately followed Estrella  in this instance,  and we                                                

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

          7.   Ineffective Assistance.   The appellant  presses a                    7.   Ineffective Assistance.                                               

claim,  which  he did  not  advance below,  that  trial counsel's

performance   was  constitutionally   deficient.     Such  claims

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

heard for the first time on direct  appeal.  See United States v.                                                                        

Mala, 7 F.3d  1058, 1063 (1st Cir. 1993)  (listing representative              

cases).  The  appellant's challenge is factbound and  there is no

basis  for deviating from the usual rule.   Thus, we dismiss this

aspect of the  appeal without prejudice to  the appellant's right

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

2255.

          We need  go no further.   From aught that  appears, the

                                                  

     3Subsequent to  oral argument  of this  appeal, the  Supreme
Court  granted certiorari in Caron v.  United States, 66 U.S.L.W.                                                              
3444 (U.S. Jan.  9, 1998) (No.  97-6270).  The Court's  answer to
the  question certified  in Caron  possibly could  require  us to                                           
reexamine Estrella.   We will  deal with this possibility  in the                            
opinion resolving the government's cross-appeal.

                                9

appellant was fairly tried and  lawfully convicted.  The judgment

of conviction (but not the sentence) will therefore be

Affirmed.          Affirmed.                  

                                10
