07-5359-cr
United States v. Padilla


                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                        ________________________

                               August Term 2008

(Argued: September 26, 2008                    Decided: December 2, 2008)

                             Docket No. 07-5359-cr
                           _________________________


                           UNITED STATES OF AMERICA,

                                                            Appellee,

                                   -against-


                                HECTOR PADILLA,

                                                  Defendant-Appellant.

                            _______________________

          On Appeal From the United States District Court
                For the Eastern District of New York

                            _______________________

B e f o r e :     RAGGI and CALABRESI, Circuit Judges, and KEENAN,
                  District Judge.*
                        _______________________

     Appeal from a judgment of conviction for possession of a
firearm by a convicted felon. The United States District Court for
the Eastern District of New York, Nicholas G. Garaufis, J.,
adopting recommendations of Roanne L. Mann, United States
Magistrate Judge, denied a motion to suppress after concluding
that the stop and frisk of defendant by police was constitutional.
Appellant challenges this ruling as well as trial rulings
restricting his cross-examination of government witnesses.

      AFFIRMED.
*
     The Honorable John F. Keenan, United States District Judge
for the Southern District of New York, sitting by designation.
                    ___________________

                    KATHLEEN NAUGHTON, Assistant United States
                    Attorney (Jo Ann M. Navickas, Assistant
                    United States Attorney, on the brief), for
                    Benton J. Campbell, United States Attorney
                    for the Eastern District of New York, for
                    Appellee.

                    SAMUEL GREGORY, New York, N.Y., for
                    Defendant-Appellant.
                    ___________________

KEENAN, District Judge:

                             INTRODUCTION

          Defendant-appellant     Hector    Padilla   appeals   from a

judgment of conviction entered in the United States District Court

for the Eastern District of New York (Garaufis, J.) after a jury

trial for possession of a firearm as a convicted felon.         Before

trial, the district court concluded that police had reasonable

suspicion to stop and frisk the defendant pursuant to Terry v.

Ohio, 392 U.S. 1 (1968), and denied defendant’s motion to suppress

the handgun that was recovered. On appeal, Padilla challenges this

conclusion.   He also claims that the district court abused its

discretion and violated his Fifth and Sixth Amendment rights with

trial rulings that he claims curtailed his cross-examination of

government witnesses.     We affirm for the reasons that follow.




                                   2
                            BACKGROUND

A. The Suppression Motion

     1. Facts1

          Around 8:15 p.m. on October 27, 2006, NYPD Detective

Brendan O’Brien and his partner were sitting in an unmarked car

conducting surveillance of a Staten Island apartment building that

they had reason to believe was being used in the sale of narcotics.

O’Brien had approximately nine years of experience in the NYPD,

two-and-a-half of which were spent on narcotics detail in Staten

Island. The apartment building under surveillance was located near

the intersection of Boyd and Cedar streets in the neighborhood of

Stapleton, an area known for its high rate of shootings and drug-

and gun-related arrests.    Two undercover NYPD detectives were

fatally shot in this neighborhood in March 2003.

          From the car, O’Brien observed a skinny, white male

walking in the middle of Boyd Street toward the intersection where

the apartment building is located. Based upon the man’s skinny and

“disheveled” appearance, and the fact that he was a white man in a


1
     In denying Padilla’s motion to suppress, the district court
adopted a report and recommendation issued by Magistrate Judge
Roanne L. Mann after a suppression hearing. The sole witness at
the hearing was Brendan O’Brien, a New York City Police
Department (“NYPD”) detective who stopped and frisked Padilla and
found the handgun on him. The facts set forth in this section
are from Det. O’Brien’s undisputed testimony, which the
magistrate judge found to be credible. Because the testimony was
not disputed and was found credible, we take it as true for
purposes of our opinion.
                                3
predominantly African American neighborhood, O’Brien believed that

he might have been a drug user on his way to the surveilled

building to buy drugs.         Instead of turning left on Cedar street

toward the building, however, the disheveled man continued straight

on Boyd street, crossing Cedar toward a wooded pathway where Boyd

ends.

           At this point, Det. O’Brien noticed two other men who

appeared to be following the disheveled man.            One of the two who

were following was the defendant, Padilla.              The two men were

walking together in single file and without speaking in the same

direction along Boyd street, twenty feet behind the disheveled man.

There was no one else around.      From the manner in which the two men

were walking, in single file while remaining directly behind the

disheveled man, it appeared to Det. O’Brien that they were trying

to avoid the man’s peripheral vision so that he would be unable see

them were they to approach from behind.

           The two men continued across Cedar street, staying behind

the   disheveled   man   and   heading   toward   the   same   wooded   path.

O’Brien thought it was odd that the only persons on the street at

that time would all choose to walk through an unlit wooded path in

that high crime area after dark, instead of using the lighted

sidewalks.   He believed that a crime might possibly happen inside

the wooded lot— either that the two men would rob the disheveled

man, or that the three would engage in a drug transaction.

                                     4
            With his suspicions aroused, O’Brien drove around the

block to observe whether the three men exited the path or remained

in the wooded area.    It took O’Brien approximately thirty seconds

to circle the block.    On the other side, he saw that the two men

had caught up to the disheveled man, and the three had exited the

path and appeared to be walking as a group.        Although O’Brien did

not think that the two men already had robbed the other in that

short span of time, he believed that a robbery still might occur.

He testified that he

  still thought [the robbery] could possibly be taking place;
  that they had got up close to him now and where [the wooded
  path] exits there, Gray Street, I said it comes, turns to
  Gordon Street, there also is a very wooded lot right there
  also, maybe you could say desolate, [the robbery] can happen
  as they exit also.

O’Brien also testified that a drug deal could have happened in the

thirty seconds it took the men to walk across the lot.            According

to O’Brien, the fact that the three men had crossed the lot and

were exiting it as a group thirty seconds after entering neither

increased   nor   decreased   his   suspicion   about   whether   criminal

activity was afoot.

            As O’Brien was pulling up in the car, from about fifty

feet away from the men, he observed Padilla reach underneath his

jacket and shirt, adjust something in the center of his waistband,

and continue walking.     Although O’Brien could not make out the

dimensions of the adjusted object, it appeared to have some weight

                                     5
to it because of the way it shifted and the way Padilla moved his

hand. From O’Brien’s police experience, he recognized the movement

as   consistent    with   the   adjustment     of   a   gun   lodged   in   one’s

waistband.      O’Brien testified that he knew that firearms commonly

are concealed in the waistband and that, when they are, they

require readjustment because they shift and become uncomfortable.

O’Brien previously had made eight to ten arrests where persons

observed to make the same gesture turned out to be carrying guns in

their waistbands. He also had become accustomed on an almost daily

basis to seeing his fellow officers make the same movement to

adjust concealed firearms carried by them.                    Although O’Brien

realized   at    the   time   that   Padilla   could    have   been    adjusting

something other than a firearm, he did not recognize the gesture as

being consistent with any innocent explanation.2

           Still suspecting that a robbery or drug deal might take

place, and now believing that one of the two followers might be


2
     At the suppression hearing, Det. O’Brien demonstrated the
hand gesture twice for the magistrate judge. On cross-
examination, the defense inquired whether Padilla might have been
adjusting a cell phone or keys clipped to his belt. On re-
direct, O’Brien testified that he had never seen a person wear a
cell phone or keys right in the middle of the waistline.
Defense counsel also asked whether Padilla might have been
adjusting his genitals, but O’Brien (again on redirect) stated
that he did not think so because “a person’s genitals are not in
the middle of their stomach area.” In O’Brien’s experience, he
had only seen illegal items—generally guns but, on one occasion,
firecrackers—tucked into the center of the waistband. O’Brien
also testified that Padilla’s movement was not consistent with
tucking in a shirt or pulling up one’s pants.

                                       6
armed, O’Brien pulled the car in front of the three men.                 He and

his partner got out without guns drawn and instructed the men to

place their hands on the vehicle.          O’Brien immediately patted down

the exterior of Padilla’s clothing near his waistline.                Feeling a

hard object shaped like a gun, O’Brien reached underneath Padilla’s

clothing, removed a loaded .38 caliber revolver from his waistband,

and placed him under arrest.

      2. The Magistrate Judge’s Report and Recommendation

            The magistrate judge issued a report recommending that

Padilla’s motion to suppress be denied.          She found Det. O’Brien’s

testimony to be wholly credible and concluded that, under the

totality of the circumstances, he had reasonable suspicion to stop

and frisk Padilla pursuant to Terry v. Ohio, 392 U.S. 1 (1968).

            The magistrate concluded that the following facts, taken

together,   established    reasonable      suspicion    and     justified     Det.

O’Brien in briefly detaining Padilla: (1) the fact that the area

was a high-crime neighborhood with a high incidence of drug- and

gun-related violence; (2) the fact that the detention occurred

after dark and that, as O’Brien testified, it was odd for people to

travel on the isolated, unlit path after dark rather than stay on

the   lighted   streets;   (3)   the   suspicious      manner    in   which    the

defendant and his companion had followed the disheveled man onto

the wooded pathway; and (4) the defendant’s hand gesture, which

O’Brien recognized from his police experience as consistent with

                                       7
the adjustment of a gun tucked into one’s waistband.                 With respect

to the hand gesture, the magistrate judge watched two in-court

demonstrations and described the gesture as a “distinctive gripping

motion, as if holding and adjusting (first up and then down)

something comparable in size, shape, and heft to a handgun.” United

States v. Padilla, No. 06 Cr. 824 (NGG), 2007 WL 1958894, at *7

(E.D.N.Y.    June   29,     2007)   (adopting         Magistrate’s   Report   and

Recommendation,     dated    Mar.   2,       2007).     She   also   specifically

credited O’Brien’s testimony that the gesture did not appear to

conform with any innocent alternative explanation.

            Finally, the magistrate judge concluded that the patdown

search was justified. She found that O’Brien had reason to believe

that Padilla was armed and dangerous, based on his hand gesture and

the other facts suggesting that a robbery or drug transaction was

about to occur.

            Over defense objection, the district court adopted the

magistrate’s report and recommendation in its entirety and denied

the suppression motion.


B. The Trial

            Trial began on August 6, 2007 and lasted two days.                In

his opening statement, Padilla’s counsel articulated the following

defense theory:     While on their way to the apartment building to

buy drugs, defendant and the other two men saw the detectives


                                         8
staking the place out from their unmarked car.             In response, the

three men continued to walk straight on Boyd street and entered the

wooded path.    The men then saw the police lights of the detectives’

car as it circled the wooded lot.         Knowing that the police were in

pursuit, one of the two men with whom Padilla was walking dumped

the gun along the path.         Defense counsel told the jury that the

evidence would show that the police found the gun on the wooded

path and planted it on Padilla, which is why Padilla’s fingerprints

were not found on the gun.

          The government’s evidence at trial consisted of the

testimony of Det. O’Brien, his partner Det. William Owens, Det.

Thomas Murphy, a member of the narcotics team who arrived on the

scene in time to observe the firearm being removed from Padilla’s

waistband, and Det. Bachia, who testified that Padilla confessed to

possessing the firearm after he was arrested.

          The    government’s      first     witness     was   O’Brien,   who

reiterated and expanded upon his testimony at the suppression

hearing. He testified that Det. Murphy and another officer arrived

on the scene as he was getting out of the police car to stop the

three men.     O’Brien then patted down Padilla, recovered the gun

from his waistband, and placed him under arrest.               Next, O’Brien

radioed for an NYPD Evidence Collection Team to test the gun for

fingerprints.      The   team    responded   but   was    unable   to   obtain

fingerprints from the gun.

                                      9
             On    cross-examination,    the     defense     sought   to   inquire

whether the detectives had searched the wooded path and, in fact,

found the gun there instead of on Padilla’s person. The government

objected to this line of questioning, and the trial court sustained

the objections.

             Det. Murphy next took the stand.           He testified that he

received a radio communication from O’Brien and Owens and arrived

on the scene in time to see O’Brien pull the handgun from Padilla’s

waistband.        On cross-examination, the defense again attempted to

inquire whether any of the officers searched the wooded pathway.

The district court sustained the government’s objections, ruling

that the questions went beyond the scope of direct examination.

             The next witness was Det. Owens, who testified that he

was working with Det. O’Brien on the evening in question.                        His

testimony    corroborated     O’Brien’s        explanation    of   how     the   two

detectives came to stop Padilla.             Like O’Brien, Owens observed the

two men follow the other into the wooded lot, saw them exit it

together on the other side, and observed Padilla make a movement to

adjust an item, which Owens believed to be a gun, in his waistband.

Owens also testified to radioing the rest of the field team, which

included Det. Murphy and another officer, prior to stopping the

three men.    Owens frisked one of the other men and subsequently saw

O’Brien hand another officer the gun that O’Brien had found on

Padilla.

                                        10
           On cross-examination, the defense again turned to the

topic of who, if anyone, searched the wooded pathway.            The trial

court   sustain   the   prosecution’s   objections   to   each   of   these

questions.

           At a conference held at the conclusion of the first day

of trial, Padilla’s counsel moved for a mistrial on the grounds

that he should have been permitted to ask the detectives about

everything they did at the scene of the arrest, including whether

they went back to search the wooded path.        The court denied the

mistrial motion.

           After the conference, the court issued a trial memorandum

stating that “[i]f defense counsel wishes to pursue a theory that

the weapon at issue was planted on the Defendant . . .           he is of

course free to do so on his direct case,” for example by calling as

witnesses the other two men stopped on the night in question.          The

memorandum went on to state that defense counsel would continue to

be permitted to “cross examine any of the Government’s witnesses

with proper questions regarding their role or direct observations,”

but that the court would “not permit any argument that is not based

upon the evidence or lack of evidence in this case, whether it is

in the Defendant’s cross examination, direct case, or closing

argument.”

           At a conference on the morning of the second day of

trial, the government advised the court that the three detectives

                                   11
who had testified on the previous day were present and available to

be called by the defense. Defense counsel then requested that “the

Court revisit a number of [the] rulings that it made.”                  He sought

permission to cross-examine the earlier witnesses to ask them (1)

whether the detectives went back and checked the pathway with

flashlights for evidence; (2) whether the firearm was found on the

pathway; and (3) the substance of any background information the

officers had obtained from the other two men Padilla was with at

the time of his arrest.           When asked by the court who the defense

wanted to put back on the stand, defense counsel replied that he

wished   to    recall      Det.   O’Brien      only.    The   court   granted    the

defense’s request to reopen cross-examination on the three subjects

identified by defense counsel.

              When   the    trial   resumed,      the   government    called    Det.

Bachia, who had interviewed Padilla after his arrest.                          While

Padilla was in custody, the detective advised him of his Miranda

rights, which Padilla acknowledged in writing by signing a waiver

of rights form.       Padilla then confessed that he was on his way to

buy heroin when he was stopped by the police, who recovered the

firearm from his waistband.          Padilla further explained that he had

stolen the firearm five or six months before the arrest.

              Det.   O’Brien      then   was    recalled   for   reopened   cross-

examination.      He testified that he did not examine the pathway in

the wooded lot and did not know if any other police officer did.

                                          12
           The       government     rested,      and     the    parties     entered

stipulations on the prior felony and interstate commerce elements.

The defense called no witnesses.               After three and one-half hours

of deliberations, the jury returned a guilty verdict.


                                      DISCUSSION
A. The Terry Stop

           There is no dispute that Padilla was seized within the

meaning   of    the   Fourth    Amendment      when    he    complied     with   Det.

O’Brien’s order to stop and place his hands on the police car.                    The

sole issue is whether there was reasonable suspicion to justify the

encounter under Terry v. Ohio, 392 U.S. 1 (1968).

           We    review   the     district     court’s      reasonable    suspicion

determination de novo. Ornelas v. United States, 517 U.S. 690, 697

(1996). The factual findings underlying that determination must be

accepted unless clearly erroneous. United States v. Bayless, 201

F.3d 116, 132 (2d Cir. 2000).         All evidence supporting the denial

of the suppression motion is viewed in a light most favorable to

the government. Id.

           Under Terry, a police officer may briefly detain an

individual     for    questioning    if    the   officer       has   “a   reasonable

suspicion that the individual is, has been, or is about to be

engaged in criminal activity.” United States v. Villegas, 928 F.2d

512, 516 (2d Cir. 1991).        A Terry stop is “an intermediate response

allowing police to pursue a limited investigation when they lack

                                          13
the precise level of information necessary for probable cause to

arrest.” United States v. Elmore, 482 F.3d 172, 178 (2d Cir. 2007).

Accordingly,      the    amount    of   suspicion       needed    to    justify    the

encounter is less than a “fair probability” of wrongdoing, and

“considerably less than proof of wrongdoing by a preponderance of

the evidence.” United States v. Sokolow, 490 U.S. 1, 7 (1989).

            In reviewing reasonable suspicion determinations, we look

to the totality of the circumstances to see whether the officer had

a   “particularized       and     objective   basis”      to     suspect    criminal

activity.      United    States    v.   Arvizu,   534     U.S.   266,    273   (2002)

(quotation marks omitted).          The officer “must be able to point to

specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant [the] intrusion.”

Terry, 392 U.S. at 21.             While the officer may not rely on an

“inchoate and unparticularized suspicion or ‘hunch,’” id. at 27, he

is entitled to “draw on [his] own experience and specialized

training    to    make    inferences      from    and    deductions        about   the

cumulative information available to [him] that might well elude an

untrained person.” United States v. Muhammad, 463 F.3d 115, 121 (2d

Cir.   2006)     (quoting   Arvizu,     534   U.S.   at    273    (alterations      in

original, internal quotation marks omitted)).                    Therefore, courts

evaluate the circumstances surrounding the stop “‘through the eyes

of a reasonable and cautious police officer on the scene, guided by

his experience and training.’” Bayless, 201 F.3d at 133 (quoting

United States v. Oates, 560 F.2d 45, 61 (2d Cir. 1977)).
                                14
               “[T]he determination of reasonable suspicion must be

based    on     commonsense      judgments     and   inferences       about   human

behavior.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000).                        Even

conduct that is “as consistent with innocence as with guilt may

form the basis for an investigative stop where there is some

indication of possible illicit activity.” Villegas, 928 F.2d at

516.    Terry recognized that a “series of acts, each of them perhaps

innocent in itself,” can when “taken together warrant[] further

investigation.” Terry, 392 U.S. at 22.

               During a lawful stop, if the investigating officer has

reason    to    believe   that    the   detained     individual    is    armed    and

dangerous, he may conduct a patdown search for concealed weapons.

Id. at 23-27; Adams v. Williams, 407 U.S. 143, 146 (1972).                       “The

purpose of this limited search is not to discover evidence of

crime, but to allow the officer to pursue his investigation without

fear of violence.” Williams, 407 U.S. at 146.                     Therefore, the

protective      search    is   permissible     “whether   or    not     carrying    a

concealed weapon violate[s] any applicable state law.” Id.

               Applying these principles, we find that the district

court    correctly    determined        that   the   officers     had   reasonable

suspicion to stop the defendant.                 While conducting narcotics

surveillance in a high-crime neighborhood, Det. O’Brien observed a

skinny, disheveled man whose appearance suggested drug use being

followed by two men down an otherwise deserted street.                  The two men

                                          15
walked   in    single   file    and,   without      speaking    to   one   another,

remained directly behind the disheveled man at a distance of twenty

feet, such that they would avoid his peripheral vision if they

approached from behind.          This manner of walking, which appellant

himself describes as “ostensibly suspicious” (Appellant’s Br. at

30), supported the detective’s suspicion that the two men might

have been targeting the disheveled man for a robbery.

              Watching all three men walk onto an isolated, dark path

at night rather than stay on the lighted sidewalks caused the

detective to further suspect that criminal conduct–either a robbery

or a drug deal—was about to take place.                 Det. O’Brien testified

that it seemed unusual for persons to travel by the path in that

neighborhood after dark. This assessment was based not only on his

observations of the area but also on his familiarity with the

neighborhood’s high incidence of shootings and drug-related crimes.

See Arvizu, 534 U.S. at 276 (stating that officers are entitled to

assess situations in light of their experience and familiarity with

a particular area and its inhabitants).               The high-crime nature of

the   neighborhood      was    properly    “among     the    relevant   contextual

considerations” in his assessment of the situation. Wardlow, 528

U.S. at 124.         Furthermore, although it was only 8:15 p.m., the

choice   of    the   unlit    route    after   dark    was    another   fact   that

reasonably contributed to the suspicion that criminal activity was

afoot. Bayless, 201 F.3d at 134 (stating that, in the presence of


                                          16
other suspicious factors, the “sometimes innocuous factors such as

the time of day . . . take on added significance”).

          Padilla   argues    that   any    suspicion    generated     by the

curious procession onto the wooded path should have dispelled when

the three men emerged from the other side as a group just thirty

seconds later, because at that moment it was apparent that no

robbery had taken place along the path.         According to Padilla, the

only facts that remain to justify the stop are his presence in a

high-crime neighborhood, “the fact that the sun had set,” and his

adjustment of a concealed object in his waistband. (Appellant’s Br.

at 24.)   He submits that these facts are insufficient under Terry

and its progeny.

          This   argument    fails   because    Det.    O’Brien    offered   a

reasonable explanation why he remained suspicious even after the

men emerged from the wooded path.         The detective believed that the

two men might have just caught up to the disheveled man at the end

of the path, and that a robbery was about to occur.               This belief

was not based on an “inchoate and unparticularized suspicion or

hunch,” as appellant asserts, but on the detective’s observation

that the path exited into a desolate area near another wooded lot

which was similarly well-suited for a robbery.           The fact that the

crime did not happen at the exact location originally expected did

not, in the circumstances of this case, significantly lessen the

chances that a crime would be committed.         “[T]here was nothing to

                                     17
indicate abandonment of an intent to commit a robbery at some

point.” Terry, 392 U.S. at 28.3

          In addition, Det. O’Brien testified that the men could

have engaged in a drug deal during the thirty seconds it took them

to cross the path.    Thus, there was no reason why the initial

suspicion of drug activity should have abated.     If anything, the

fact that Padilla and his companion exited the wooded lot alongside

the apparent drug user, after entering separately, would seem to

support the hypothesis that the men had met inside to conduct a

drug deal.

          As he was driving toward the men, Det. O’Brien observed

Padilla reach underneath his jacket and shirt and adjust a weighty

object concealed at the center of his waistline.    From his police

experience—which included eight to ten arrests of armed individuals

observed to make the same movement, and the regular sight of his

fellow officers adjusting concealed firearms carried by them in the


3
     This case is unlike United States v. Arenas, 37 F. Supp. 2d
322 (S.D.N.Y. 1999), the principal case that appellant relies
upon to support his dissipation argument. There, the officers’
suspicion that the three men under surveillance were “casing” a
cell phone store should have dispelled when the men left the
store and headed toward the subway, away from any establishment
in which they might perpetrate a robbery. Id. at 329. The
officers could not articulate any reason why they continued to
suspect criminal activity, and their testimony demonstrated that
they “decided to stop [the defendant] and his companions, not
because the officers believed the men to be committing a crime,
but rather because they feared that the men would disappear into
the subway system.” Id.    In contrast, at the time of Padilla’s
stop, he and his companion had closed the distance on their mark,
and a robbery was possible at any moment.
                                18
same    fashion,    Det.     O’Brien   recognized     Padilla’s       gesture     as

consistent with the adjustment of a concealed firearm. Viewing the

gesture “through the eyes of a reasonable and cautious police

officer on the scene, guided by his experience and training,”

Bayless, 201 F.3d at 133 (internal quotation marks omitted), it was

reasonable   to    infer     that   Padilla    was   carrying    a    gun   in    his

waistband.

            Padilla maintains that the gesture was ambiguous because

the dimensions of the adjusted object could not be seen through his

clothing.    However, after watching two in-court demonstrations of

the    gesture,    the   magistrate    judge    concluded      that   it    was    “a

distinctive gripping motion, as if holding and adjusting (first up

and then down) something comparable in size, shape, and heft to a

handgun.” Padilla, 2007 WL 1958894, at *7.               Padilla also contends

that he could have been adjusting an innocuous item, such as a cell

phone, a key ring or a belt buckle.              Yet Det. O’Brien testified

that the adjustment was not consistent with any of the innocent

explanations      proposed    by    defense    counsel    at   the    suppression

hearing, and the magistrate credited this testimony.                  Even if the

gesture were consistent with conceivable innocuous adjustments, its

“distinctive” consistency with the adjustment of a firearm provided

the detective with a reasonable basis to suspect that Padilla was

armed. See Wardlow, 528 U.S. at 125 (stating that “[e]ven in Terry,

the conduct justifying the stop was ambiguous and susceptible of an


                                        19
innocent explanation”).

          The suspected possession of a concealed handgun was

another fact contributing to the suspicion that a robbery or a drug

deal was afoot.   Handguns are, of course, tools of the narcotics

trade, United States v. Riley, 452 F.3d 160, 167 (2d Cir. 2006),

and frequently the weapon of choice in robberies. See, e.g., United

States v. Whitley, 529 F.3d 150, 151 (2d Cir. 2008).

          The totality of the circumstances in this case—the high-

crime neighborhood, the sight of two men surreptitiously following

a man whose appearance suggested drug use down an otherwise-

deserted street, the choice of a dark path not commonly used at

night, the apparent adjustment of a concealed firearm–provided

ample basis for an investigative stop.   Indeed, given the distinct

possibility that an armed robbery might be about to occur, the

officers would have been derelict in their duty had they failed to

take action.

          Moreover, because the officers had reason to believe at

the inception of the stop that Padilla was armed and dangerous,

they were entitled to frisk him prior to questioning.   “There is no

reason why an officer, rightfully but forcibly confronting a person

suspected of a serious crime, should have to ask one question and

take the risk that the answer might be a bullet.” Terry, 392 U.S.

at 33 (Harlan, J., concurring).



                                  20
 B. Rulings on Cross-Examination

           Defendant   claims    that     the    trial   court    abused      its

discretion and violated his rights to confront witnesses and

present a defense by initially disallowing cross-examination into

whether the detectives searched the wooded path and, in fact, found

the gun there.   The right to confront witnesses is violated when a

defendant is “prohibited from engaging in otherwise appropriate

cross-examination designed . . .         ‘to expose to the jury the facts

from which jurors ... could appropriately draw inferences relating

to the reliability of the witness.’” Delaware v. Van Arsdall, 475

U.S. 673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318

(1974)).   “[T]he main and essential purpose of confrontation is to

secure for the opponent the opportunity of cross-examination.” Id.

at 678 (internal quotation marks and emphasis omitted).

           Here, the district court reconsidered its initial ruling

on the morning of the second day of trial and stated that it would

permit reopened cross-examination into the subjects that defense

counsel wished to explore.      All three detectives were available to

re-take the stand. Thus, defendant was afforded the opportunity of

cross-examination   guaranteed    by     the    Confrontation     Clause.     See

United States v. Maldonado-Rivera, 922 F.2d 934, 956 (2d Cir. 1990)

(finding   no   Confrontation    Clause     violation    and     no   abuse    of

discretion in trial court’s ruling prohibiting the defense from

referring in cross-examination to cassette tapes made by FBI agents


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during surveillance, where “the court did not adhere to this

ruling”   but   instead        “permit[ted]    cross-examination        on     a    wide

variety of topics . . . including the use and reuse of [the]

cassettes”).       Nevertheless, Padilla opted to recall only Det.

O’Brien, who testified that he did not search the path and did not

know if anyone else did.          Defendant thereby waived the opportunity

to confront the other two detectives on these subjects.

              Assuming arguendo that the initial ruling was an abuse

of    discretion,     it   was    harmless.         The    assumed     error       is    a

misapplication of an evidentiary rule and, as discussed above, not

a violation of the Confrontation Clause.               Therefore, we apply the

harmless error standard enunciated in Kotteakos v. United States,

328 U.S. 750, 765 (1946). See United States v. Estrada, 430 F.3d

606, 622 (2d Cir. 2005).          Under this standard, the error is deemed

harmless if “there is ‘fair assurance’ that the jury’s ‘judgment

was not substantially swayed by the error.’” Id. (quoting United

States v. Yousef, 327 F.3d 56, 121 (2d Cir. 2003)).                        The trial

court did not, as defendant claims, impermissibly preclude him from

presenting his theory of defense. See United States v. Reindeau,

947   F.2d   32,    36   (1991)    (holding     that      such   an   error    is       not

harmless).      The      net   effect   of    the   court’s      rulings   was      that

defendant had to wait until the next day to ask the questions he

wanted.      In light of the overwhelming evidence of guilt, which

consisted of three eyewitnesses and a full confession, we are


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confident that the overnight delay did not substantially influence

the verdict.

          Padilla argues that the later ruling did not remedy the

error because, by initially sustaining the government’s objections

to his questions about whether police searched the path, the court

“utterly delegitimized all defense inquiries on that subject in the

eyes of the jury.” (Appellant’s Br. at 47.)          Yet Padilla himself

denied the later ruling its full curative effect when he decided

not to reopen cross-examination of two of the three detectives. He

cannot complain now of self-inflicted harm.           He also failed to

request that the jury be instructed not to draw an improper

inference from the court’s initial ruling.            In any event, any

residual prejudice from that initial ruling could not have affected

the verdict, given the strength of the government’s case.

                              CONCLUSION

            We   have   considered    all   other   arguments   raised   by

appellant and find them to be without merit.            For the reasons

stated above, the judgment of conviction is AFFIRMED.




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