               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 08-1114

                            UNITED STATES,

                               Appellee,

                                    v.

                              GRANT BOYD,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. George A. O'Toole, Jr., U.S. District Judge]


                                 Before

                     Boudin, Lipez and Howard,
                          Circuit Judges.



     James H. Budreau on brief for appellant.
     Jennifer Hay Zacks, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on motion for summary
disposition.



                          November 10, 2008
          Per curiam.      Defendant Grant Boyd conditionally pled

guilty to possessing and conspiring to possess methamphetamine with

intent to distribute, 21 U.S.C. §§ 841(a)(1), 846, and conspiring

to launder money, 18 U.S.C. § 1956.           He appeals the district

court’s denial of his pretrial motion to suppress evidence, in

which he contended that a Fedex internal security officer had acted

as an agent and instrument of the government when he opened a

package addressed to Boyd.    Finding no error, we summarily affirm

Boyd’s conviction.    See 1st Cir. R. 27(c).

          In    December   2004,   Boyd    sold   methamphetamine   to   a

confidential informant who was cooperating with an FBI/DEA drug

task force. Massachusetts State Trooper Shawn Murray, a task force

member, learned that a “nervous” Boyd had informed the staff at his

hotel that he was expecting delivery of a package.        Officer Murray

contacted the local Fedex office, and asked the internal security

officer Joe Gulley to keep an eye out for any package addressed to

the hotel.     Gulley intercepted the package before delivery, and

based on its suspicious appearance (e.g., heavily taped, shipped

from a California freight-forwarding office, and addressed to a

hotel, rather than a business or residence), he decided to open the

package, whereupon he discovered a white powder.        Gulley notified

Officer Murray, who confirmed that the powder’s appearance was

consistent with methamphetamine.       Boyd was arrested at his hotel

when he accepted receipt of the rewrapped package.             Gulley’s


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opening and inspection of the package was one ground for the

issuance of a search warrant to search Boyd’s hotel room, where

police seized further evidence of his drug trafficking.

            After Boyd was charged with drug trafficking and money

laundering, he moved to suppress both the metamphetamine seized

from the package and the other evidence found in his hotel room,

based on his contention that his Fourth Amendment rights were

violated because Gulley had not acted as a private party when he

searched the package, but as an “agent” or “instrument” of the

government (viz., Officer Murray). See United States v. Momoh, 427

F.3d 137, 140 (1st Cir. 2005).            When the district court rejected

this contention at the close of an evidentiary hearing, Boyd

entered a conditional guilty plea.

            We must affirm the district court’s denial of appellant’s

suppression    motion      “‘if   any   reasonable    view    of   the   evidence

supports the decision.’”          United States v. Carrasco, 540 F.3d 43,

49   (1st   Cir.   2008)    (citation     omitted).     The    district    court

correctly applied the three-factor standard set forth in United

States v. Pervaz, 118 F.3d 1, 6 (1st Cir. 1997), which assesses the

extent of the government’s role in instigating or participating in

the search, the government’s intent and the degree of control it

exercised over the search and the private party, and the extent to

which the private party aimed primarily to help the government or

to serve its own interests.             Boyd’s specific challenges to the


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district court’s rationale fall short.

           He    first    suggests    that     Officer   Murray    “instigated”

Gulley’s search because Gulley would not have located and opened

the package (which was already en route for delivery) but for

Murray’s tip.     The “instigation” criterion is not satisfied merely

because the police have made some prior contact with the private

party.   Id.    at   5.    Instigation       “properly   means     ‘affirmative

encouragement,’ or alternatively, ‘coercing,’ ‘dominating,’ or

‘directing’ an individual.”           Momoh, 427 F.3d at 141 (citations

omitted); Pervaz, 118 F.3d at 6 (affirming a non-instrumentality

determination even though “probably . . . there would have been no

search made by COB employees were it not for Agent Barnard's

telephone call”).         The district court credited Officer Murray’s

testimony that he merely told Gulley to keep an eye out for any

package addressed to the Nine Zero Hotel, perhaps with a view to

his obtaining a search warrant to open it, and that he did not

coerce Gulley, or even ask that Gully seize or search the package

on his own.     See United States v. Espinoza, 490 F.3d 41, 46 (1st

Cir.   2007)    (observing    that    the     district   court’s   credibility

determinations at a suppression hearing are entitled to utmost

deference).       Under     Pervaz,   therefore,     appellant’s      attempted

reliance on the cumulative history of similarly non-instigative

requests from Officer Murray to Gulley also is of no import.

           With respect to the question of Officer Murray’s intent,


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appellant     again    suggests    that,     given     the   long    history   of

cooperation    between    Officer    Murray      and   Gully,   “a     reasonable

inference could be easily and naturally be drawn that [they] had a

tacit understanding” that Officer Murray intended that Gulley

invariably would search any package which Officer Murray flagged

for him.    The district court chose not to draw that inference,

however, id., instead crediting Gulley’s testimony that, when

exercising his prerogatives as Fedex’s internal security officer,

he did not always open and inspect packages after receiving tips

from law enforcement, and that he independently decided to open

appellant’s package because it was heavily taped, it had been

shipped by a freight-forwarding office located in California, and

it was addressed to a hotel, rather than a business or residence.

This evidence undermines the inference that Officer Murray knew or

intended from the outset that Gulley would search the package.

            Finally, appellant suggests that, given the long history

of cooperation between Officer Murray and Gulley, “[t]here is only

one   reasonable      conclusion    that   can    be    drawn   from    Gulley’s

extraordinary effort to secure this package: he wanted to assist

Murray in his investigation,” rather than promoting Fedex’s own

private interests.       The mere fact that Gulley may have wanted,

among his many motives in seizing and searching the package, to

help Officer Murray’s criminal investigation does not preclude a

district court determination that Gulley acted with mixed motives,


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and that one of those compelling motives was to protect Fedex’s own

legitimate interests.   See Momoh, 427 F.3d at 141-42 (noting that

private carriers have a common-law right to guard against the

transport of contraband, that “it is likely that the company was

motivated by more than a desire to comply with FAA regulations,”

and “had a number of potential reasons, notwithstanding the FAA

regulations, to inspect Momoh's package”); Pervaz, 118 F.3d at 6.

Fedex paid Gulley to act as its internal security officer, and

specifically to effectuate its stated policy of preventing its

transport of contraband.

           The   judgment   of   conviction   is   affirmed,   and   the

government’s pending motion to file an appellate brief is dismissed

as moot.   See 1st Cir. R. 27.0(c).

           Affirmed.




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