
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR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
