          United States Court of Appeals
                      For the First Circuit

No. 13-1084

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                          ANTHONY SILVA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                              Before

                 Torruella, Howard, and Thompson,
                          Circuit Judges.



     Edward J. O'Brien, by appointment of the court, with whom
O'Donnell, Trossello & O'Brien, LLP, was on brief for appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.




                         February 5, 2014
             TORRUELLA, Circuit Judge. Anthony Silva was convicted in

district court of possessing with intent to defraud counterfeit

United States currency in violation of 18 U.S.C. § 472. On appeal,

Silva claims that the district court erred in admitting evidence

seized by police during and after his arrest, denying his motion

for a judgment of acquittal based on the insufficiency of the

evidence,    and   issuing   a   prejudicial   jury   instruction   on   the

statutory element of fraudulent intent.         Because we find no error

in the district court's evidentiary rulings or jury instructions,

we affirm.

                        I.   Facts and Background

A.   Arrest and Search

             On July 19, 2010, Daniel Pelletier came to the Derry

Police Department to report a complaint against his acquaintance

Anthony Silva.     Pelletier told Officer O'Donaghue that Silva had

just given him $150 in counterfeit currency in exchange for $100

worth of repairs that Pelletier had performed on his car, which

Pelletier produced for the officer in a plastic bag.            Pelletier

related that Silva was producing counterfeit bills as well as

counterfeit drivers' licenses, and that Silva had $300 to $400 more

in counterfeit currency in a white Sovereign Bank envelope.              He

also reported that Silva was living out of his silver Cadillac

sedan, in which Silva kept all of his belongings and was currently

parked in a lot at 25 Linlew Drive.        Asked why he had come forward


                                     -2-
with this information, Pelletier informed O'Donaghue that he had

been "burned" by Silva in past business transactions and was "fed

up" with his behavior.

            Although O'Donaghue was unaware of it at the time, this

was not the first time that Pelletier had complained to the Derry

Police Department regarding alleged incidents.           Over the previous

years, Pelletier had contacted the police on numerous occasions,

claiming to have been cheated out of the ownership of several gas

stations.     In   2010,   he   claimed   to   have   been   beaten   by   six

unidentified men and reported a break-in into his home.               None of

the ensuing investigations yielded any evidence corroborating

Pelletier's claims.    Pelletier would also later claim to have won

ten million dollars in the lottery in 2005, although in fact he

currently lives with his mother and has shown no evidence of

receiving such winnings.

            In response to Pelletier's report, Sergeant Muncey and

Officer Phillips of the Derry Police were dispatched to 25 Linlew

Drive.   As reported by Pelletier, the officers observed a silver

Cadillac sedan full of personal belongings, occupied by a shirtless

man sitting in the driver's seat.         Muncey and Phillips approached

the car and asked the individual for his driver's license.                 When

the individual refused to produce his license, Muncey threatened to

arrest him for failing to comply with an order from a policeman.

The individual subsequently produced a New Hampshire driver's


                                    -3-
license identifying him as Anthony Silva.       Based on that license,

Phillips radioed in Silva's information and was informed by the

dispatcher that Silva had an outstanding bench warrant for an

unpaid motor vehicle fine.

            Acting on Silva's outstanding warrant, the officers

ordered him to exit the car and placed him under arrest.        When they

conducted a search of his person incident to arrest, the officers

found a fake New York driver's license with Silva's photograph, as

well as $20 and $10 bills that Phillips believed to be counterfeit

based on their texture, coloring, and missing watermarks.          After

Silva was taken to the police station, he waived his Miranda rights

and told the officers that he must have obtained the counterfeit

bills during a transaction at a nearby Walmart or gas station.         He

refused to give the police consent to search his car.

            In the absence of consent, the police arranged to have

Silva's car towed to the police station.         The officers did not

immediately search the car, instead assigning Detective Muise to

apply for a search warrant.       That afternoon, Muise spoke with

Pelletier "in order to gain probable cause" for the search warrant.

Pelletier   informed   the   detective   that   Silva   had   called   him

following his arrest and lamented that he was "screwed" because he

had $3,000 worth of counterfeit bills in his trunk.

            Because Silva's arrest involved counterfeiting of United

States currency, the Derry prosecutor passed the case to the Secret


                                  -4-
Service.      Muise shared the information she had collected on Silva

with Special Agent Brian Coffee, including Pelletier's initial

report and her follow-up conversation.           It is unclear whether she

knew or shared information about Pelletier's history of false

reports. Coffee submitted an application for a search warrant that

included Pelletier's accusations against Silva, but no information

regarding Pelletier's mental health or his personal antipathy

towards Silva.         Coffee wrote that Pelletier's information was

"trustworthy and reliable."         After a warrant was executed, Secret

Service       agents   discovered   $2,880      in   counterfeit   money,   a

copier/scanner, and a paper cutter in the trunk, as well as $200 in

counterfeit money in the glove compartment.

B.    Trial

              The government charged Silva with possession with intent

to defraud of counterfeit United States currency in violation of 18

U.S.C. § 472.      Before trial, Silva moved to suppress any evidence

discovered during his arrest and the subsequent search of his car.

He further moved to invalidate the search warrant for his car on

the   basis     that   Coffee's   application    concealed   material   facts

bearing on Pelletier's credibility.          The district court denied the

motion to suppress and, after holding a Franks hearing on the

matter of the warrant, denied Silva's motion to invalidate.

              At trial, the prosecution presented substantially the

same information described above, as well as evidence that the


                                      -5-
serial numbers on Silva's counterfeit bills matched the numbers on

counterfeit bills recently passed in nearby towns.          After the

presentation of evidence, Silva moved for a judgment of acquittal

based on insufficient evidence to establish the statutory element

of intent to defraud. The district court denied the motion. During

the charging conference, it proposed the following jury instruction

with respect to that element:

          Because it is impossible to know a person's
          intentions   or    subjective    beliefs,   the
          government need not directly prove the
          defendant's intent to defraud another person.
          Rather,   it   may    prove   his   intent   by
          circumstantial evidence. That is to say, you
          may infer the defendant's intent from the
          surrounding facts and circumstances. So, for
          example, in determining whether the defendant
          had the requisite intent to defraud, you may
          consider things such as whether he possessed a
          substantial   number     and/or    variety   of
          counterfeit Federal Reserve Notes.      You may
          also consider whether those counterfeit
          Federal Reserve Notes were of such a quality
          that they would be likely to be accepted in a
          transaction since the more closely counterfeit
          Notes resemble genuine currency, the more
          likely you might find that the defendant
          intended to use those Notes fraudulently to
          receive goods or services.

Silva challenged the proposed instruction on the grounds that the

court's references to the amount of currency as potential evidence

of intent endorsed the government's theory of proof.        The court

overruled the objection.




                                -6-
            The   jury    returned    a   conviction      on   the   charge    of

possession with intent to defraud.             Silva now appeals to this

court.

                              II.    Discussion

            With the exception of Silva's challenge to the jury

instructions, which are reviewed for abuse of discretion, United

States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012), we review Silva's

challenges to the admissibility of seized evidence and the judgment

of acquittal de novo.       Ornelas v. United States, 517 U.S. 690, 699

(1996)    (holding   that   reasonable      suspicion   and    probable     cause

determinations are reviewed de novo); United States v. Grace, 367

F.3d 29, 34 (1st Cir. 2004) (reviewing sufficiency of the evidence

determinations de novo).          We review the district court's factual

findings only for clear error.         United States v. Wright, 582 F.3d

199, 205 (1st Cir. 2009).

A.   The Investigative Stop

            Silva alleges that the Derry police officers violated his

Fourth Amendment right when they seized him at 25 Linlew Road based

on Pelletier's allegedly unreliable complaint.             The parties do not

dispute    that   the    police    officers    "seized"    Silva     when    they

approached his car and demanded his driver's license.                 The only

question is whether the officers had a reasonable suspicion of

criminal activity sufficient to justify their actions.




                                      -7-
          Under the Supreme Court's precedent in Terry v. Ohio, 392

U.S. 1 (1968), a police officer may perform "a brief investigatory

stop of an individual if the officer has a reasonable suspicion

that criminal activity may be afoot."           United States v. Am, 564

F.3d 25, 29 (1st Cir. 2009); see also United States v. Arvizu, 534

U.S. 266, 273 (2002) ("[T]he Fourth Amendment is satisfied if the

officer's action is supported by reasonable suspicion to believe

that criminal activity may be afoot.") (internal quotation marks

and citation omitted).         A permissible investigatory stop must

satisfy two requirements:

          First,   the    police     officer   "must    have    a    reasonable,

articulable   suspicion   of    an   individual's      involvement      in   some

criminal activity." United States v. Ruidíaz, 529 F.3d 25, 28 (1st

Cir. 2008).   A reasonable suspicion of criminal activity requires

some "particularized and objective basis" for suspecting a stopped

individual of legal wrongdoing.        United States v. Pontoo, 666 F.3d

20, 27-28 (1st Cir. 2011) (quoting United States v. Cortez, 449

U.S. 411, 417 (1981)).    It entails "more than a mere hunch but less

than probable cause."     Ruidíaz, 529 F.3d at 29.        The First Circuit

recognizes that reasonable suspicion sufficient to justify a Terry

stop may arise when "presumptively reliable information about

criminal activity is provided by third parties."               Id.

          Second, the officer's "actions undertaken pursuant to

that stop must be reasonably related in scope to the stop 'unless


                                     -8-
the police have a basis for expanding their investigation.'"              Id.

at 28-29 (quoting Unites States v. Henderson, 463 F.3d 27, 45 (1st

Cir. 2006)).   It is well settled that a police officer conducting

an investigatory stop may request the stopped individual to produce

identifying information. "Asking questions is an essential part of

police investigations. In the ordinary course a police officer is

free to ask a person for identification without implicating the

Fourth Amendment."    Hiibel v. Sixth Judicial Dist. Court of Nev.,

Humboldt Cnty., 542 U.S. 177, 185 (2004). Where circumstances give

officers reasonable grounds to suspect that a defendant may have a

criminal history, they may also run a routine background and

warrant check without exceeding the scope of an investigatory stop.

Klaucke v. Daly, 595 F.3d 20, 26 (1st Cir. 2010); Foley v. Kiely,

602 F.3d 28, 33 (1st Cir. 2010).

          At the time Officers Muncey and Phillips approached

Silva, they had received information from a third party alleging

that Silva was producing and in possession of counterfeit currency.

The officers who received Pelletier's complaint had no knowledge of

Pelletier's prior eccentricities that may have led them to question

the reliability of his account.           Pelletier's accusations were

corroborated   by    the   fact   that    he   produced   an   exemplar    of

counterfeit currency allegedly handed to him by Silva, as well as

by the officers' own observations of Silva's car at 25 Linlew Road.

Even if Pelletier's account would not have provided "probable


                                    -9-
cause" for a full-scale search of Silva and his vehicle, the

partially corroborated complaint created a "reasonable suspicion"

sufficient to justify the police's actions in approaching Silva and

requesting basic identification. At that point, Silva's refusal to

provide his driver's license -- coupled with Pelletier's specific

allegations that Silva was producing counterfeit identification --

gave police officers reasonable grounds to run a routine warrant

check on his license.   See Klaucke, 595 F.3d at 26 ("[Defendant's]

refusal to produce a license . . . reasonably roused a suspicion

that his non-cooperation was driven by other considerations, like

an outstanding warrant for his arrest . . . ."); Foley, 602 F.3d at

33 ("[Defendant's] inability (or unwillingness) to provide his

Social Security number, combined with his initial attempt to avoid

contact with the police, provided reasonable grounds . . . to

investigate his criminal history.").

           The district court did not err in admitting evidence

seized on Silva during the arrest ensuing from the officers'

investigative stop.

B.   The Seizure of the Car

           Second,   Silva   argues   that   the   Derry   police   lacked

probable cause to seize his vehicle following his arrest.              He

insists that Pelletier's history of delusional reports undermined

the credibility of his information, and that the police's attempts

to obtain further information for a search warrant prior to


                                 -10-
actually searching the car demonstrate their lack of probable cause

at the time of seizure.

          Under the "automobile exception" to the Fourth Amendment,

police officers may seize and search an automobile prior to

obtaining a warrant where they have probable cause to believe that

the automobile contains contraband. Robinson v. Cook, 706 F.3d 25,

31-32 (1st Cir.), cert. denied, 133 S. Ct. 2831 (2013); see also

Florida v. White, 526 U.S. 559, 563-64 (1999) ("[W]hen federal

officers have probable cause to believe that an automobile contains

contraband, the Fourth Amendment does not require them to obtain a

warrant   prior   to   searching    the   car    for   and   seizing   the

contraband.").

          Probable cause exists when "the facts and circumstances

as to which police have reasonably trustworthy information are

sufficient to warrant a person of reasonable caution in the belief

that evidence of a crime will be found."        Robinson, 706 F.3d at 32;

see also Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) ("A police

officer has probable cause to conduct a search when the facts

available to [him] would warrant a [person] of reasonable caution

in the belief that contraband or evidence of a crime is present."

(alteration in original) (internal quotation marks omitted)).          The

standard is satisfied when the totality of the circumstances create

"a fair probability that . . . evidence of a crime will be found in




                                   -11-
a particular place."      United States v. Hicks, 575 F.3d 130, 136

(1st Cir. 2009) (internal quotation mark and citation omitted).

          In this case, the record suggests that at the time the

police seized Silva's vehicle they had ample evidence supporting a

finding of probable cause for a search.               After the officers

discovered Silva's outstanding warrant, their search incident to

arrest yielded several counterfeit bills and a counterfeit driver's

license in Silva's wallet.         The seized material corroborated

Pelletier's complaint, in which Pelletier had insisted that Silva

was   producing   both     counterfeit     currency     and     counterfeit

identification. Furthermore, the officers' observations of Silva's

car, which suggested that the defendant was currently living out of

the vehicle, gave them reason to believe that further evidence of

counterfeiting might be found inside the vehicle.             Together with

Pelletier's   initial    report,   which   alleged    that    Silva   had   an

additional $300 of counterfeit bills in his glove compartment, this

evidence more than sufficed to suggest there existed a "fair

probability" that searching Silva's car would lead officers to

further contraband.

          Silva insists that the officers' decision to forestall

searching his car until they had obtained a proper warrant reveals

their own doubts as to whether they had probable cause at the time

of seizure.   Setting aside the fact that the officers' procedural

diligence in obtaining a warrant hardly proves their subjective


                                   -12-
uncertainty about the quality of their evidence, Silva's argument

misreads the law of probable cause.                In evaluating probable cause,

a    court   looks    "at   the    objective       facts,   not   at   the   actors'

subjective intent."         United States v. Sánchez, 612 F.3d 1, 6 (1st

Cir. 2010).     Consequently, an officer's subjective belief that he

or she lacked probable cause is not dispositive where the facts

support an objective finding that the standard has been satisfied.

See United States v. Pardue, 385 F.3d 101, 106 n.2 (1st Cir. 2004)

("Although [the police officer's] testimony . . . calls into doubt

whether he believed that the information about throwing the lighter

amounted to probable cause, . . . an officer's subjective belief is

not dispositive of whether probable cause existed."). The practice

of awaiting a magistrate's warrant prior to conducting a search,

even where officers feel confident in their own assessment of

probable cause, is one that should be commended, not punished with

exclusion.

             The district court properly found that the police had

probable cause to seize Silva's vehicle following his arrest.

C.    The Warrant Application

             Third,    Silva      argues    that    Agent   Coffee's    failure   to

include Pelletier's history of delusional complaints or his self-

identified animus against Silva in the warrant application, both of

which may have undermined the magistrate's finding of probable

cause, renders the ensuing warrant and search of Silva's car


                                           -13-
invalid.    Silva insists that Coffee's failure to note Pelletier's

potential motives to fabricate evidence, as well as his entirely

speculative     assertions      that    Pelletier       was     "trustworthy       and

reliable," constituted a reckless disregard for truth or falsity.

             A defendant who seeks a Franks hearing to suppress

evidence    obtained    through    an    invalid      warrant     must      make   two

showings.    First,    the    defendant        must   show    that    the       warrant

application included a "false statement or omission . . . [that]

was made knowingly and intentionally or with reckless disregard for

the truth."    United States v. Rigaud, 684 F.3d 169, 173 (1st Cir.

2012); see also Franks v. Delaware, 438 U.S. 154, 155-56 (1978)

(requiring    "a     substantial   preliminary         showing     that     a    false

statement knowingly and intentionally, or with reckless disregard

for   the   truth,    was    included    by    the    affiant    in   the       warrant

affidavit"). An omission of material fact is sufficient to trigger

a hearing.     United States v. Reiner, 500 F.3d 10, 14 (1st Cir.

2007).

             Furthermore, a defendant must show that the identified

falsehood or omission "was necessary to the finding of probable

cause." Rigaud, 684 F.3d at 173; see also Franks, 438 U.S. at 156.

Consequently, evidence procured through a challenged warrant may be

suppressed at a Franks hearing "only if the warrant application,

cleansed of any false information or clarified by disclosure of

previously withheld material, no longer demonstrates probable


                                        -14-
cause."    United States v. Stewart, 337 F.3d 103, 105 (1st Cir.

2003).    Probable cause to issue a warrant exists when, "given all

the circumstances set forth in the affidavit . . . there is a fair

probability that contraband or evidence of a crime will be found in

a particular place." Reiner, 500 F.3d at 15 (omission in original)

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

            The analysis of probable cause in the foregoing section

is sufficient to dispose of Silva's challenge with regard to his

Franks hearing.      When the police seized Silva's vehicle, they

already    had   ample    evidence   to     obtain   a   warrant,   including

Pelletier's partially corroborated complaints, police officers' own

observations, and the counterfeit bills and driver's license found

in Silva's wallet.       By the time he applied for the warrant, Agent

Coffee additionally had the benefit of Pelletier's report that

Silva claimed to have $3,000 worth of counterfeit currency in his

car trunk. While Silva objects to Coffee's omission of Pelletier's

past history of false reports, the district court properly found

that the disclosure of this additional information would not have

undercut the magistrate's finding of probable cause.                 Much of

Coffee's most damning evidence, including the actual counterfeit

bills,    existed    independently        of   Pelletier's    statements.

Furthermore, several of Pelletier's predictive statements about

Silva's involvement with counterfeit goods had been corroborated by

the officers' arrest, lending credibility to his other statement.


                                     -15-
Finally, as the district court noted, Silva has produced no

evidence suggesting that Coffee's omission of the evidence was

"intentional" or even "reckless."       Aside from potentially Officer

Muise, there is no evidence that any of the officers involved with

the investigation had any knowledge of Pelletier's history, nor

that they shared this history with Coffee.

            The district court properly denied Silva's motion to

suppress.

D.   Sufficiency of the Evidence

            Fourth, Silva argues that the trial court erred in

denying his motion for a judgment of acquittal based on the

government's lack of evidence establishing his "intent to defraud"

under 18 U.S.C. § 472.      Specifically, Silva insists that mere

possession of counterfeit currency cannot establish an intent to

deceive third parties and that his admission to Pelletier that the

bills were counterfeit undercuts any deceptive intentions on his

part.

            Under 18 U.S.C. § 472, anyone who "with intent to defraud

. . . keeps in possession or conceals any falsely made, forged,

counterfeited, or altered obligation or other security of the

United States, shall be fined . . . or imprisoned not more than 20

years, or both."     18 U.S.C. § 472.      To convict a defendant of

possession under the act, the government must demonstrate that (1)

the defendant possessed a bill which was (2) counterfeit and that


                                 -16-
(3) the defendant "intended to use the false bill to defraud."

United States v. Mousli, 511 F.3d 7, 14 (1st Cir. 2007).     Where a

defendant merely possesses counterfeit currency, rather than passes

or produces it, fraudulent intent "may be inferred from surrounding

circumstances or circumstantial evidence and thus need not be

proven directly."   Id. at 16.   A "general intent to   defraud third

parties" is sufficient to sustain a conviction under 18 U.S.C.

§ 472.    United States v. Parr, 716 F.2d 796, 819 (11th Cir. 1983)

(Roney, J., concurring in part and dissenting in part); see also,

e.g., United States v. Marshall, 179 F. App'x 516, 518 (10th Cir.

2006); United States v. Baker, 650 F.2d 936, 937 (8th Cir. 1981);

United States v. Wyatt, 611 F.2d 568, 570 (5th Cir. 1980).

            The district court properly denied Silva's motion for a

judgment of acquittal.   Silva suggests that the prosecution failed

to present any credible evidence of his intent to defraud because,

in the course of his only transaction involving the counterfeit

currency, Silva openly informed Pelletier that the bills were

false; consequently, the only evidence from which a jury may have

inferred his fraudulent intent was possession of the false currency

itself.     This theory is patently false.      Aside from Silva's

possession of the currency, the prosecution demonstrated that Silva

had tendered Pelletier the counterfeit currency in satisfaction of

a genuine debt arising from a business transaction.      While Silva

openly admitted that the bills were counterfeit, he also offered


                                 -17-
Pelletier a substantially higher amount of counterfeit bills than

his initially bargained-for debt.      Silva's exchange with Pelletier

lends itself to an obvious inference that Silva offered Pelletier

the counterfeit bills for future use in third-party transactions,

intentionally injecting his false currency into the stream of

commerce.    These facts support a finding that Silva acted with a

general intent to deceive third parties. Furthermore, Agent Coffee

testified at trial that the serial numbers on false bills found in

Silva's car matched the serial numbers on false bills recovered in

several nearby businesses, supporting an inference that Silva had

previously passed the bills in commercial transactions.

            Based on the submitted evidence, the district court did

not err in submitting the question of Silva's fraudulent intent to

a jury.

E.   The Jury Instructions

            Finally, Silva argues that the district court's jury

instructions, identifying the quantity of a defendant's counterfeit

currency as potential evidence of a defendant's intent to defraud,

unfairly prejudiced the jurors in favor of the government.

            Where    a   party   challenges   the   trial   court's   jury

instructions, this court reviews de novo "whether the instructions

conveyed the essence of the applicable law" and reviews for abuse

of discretion "whether the court's choice of language was unfairly

prejudicial."       Sasso, 695 F.3d at 29; accord DeCaro v. Hasbro,


                                    -18-
Inc., 580 F.3d 55, 61 (1st Cir. 2009).           "It is unquestioned that,

when instructing a jury, a judge 'may explain, comment upon and

incorporate the evidence into the instructions in order to assist

the   jury   to   understand   it   in   light   of   the   applicable   legal

principles.'"      United States v. Hernández, 490 F.3d 81, 84 (1st

Cir. 2007) (quoting United States v. Maguire, 918 F.2d 254, 268

(1st Cir. 1990)); accord United States v. Meadows, 571 F.3d 131,

145 (1st Cir. 2009); see also United States v. Valdivia, 680 F.3d

33, 44 (1st Cir.), cert. denied, 133 S. Ct. 565 (2012) (approving

the "use of evidentiary exemplars from the body of existing trial

evidence to illustrate the meaning of" legal principles).

             The jury instructions issued in this case were neither

incorrect on the law nor unfairly prejudicial in favor of the

government. This court has previously recognized that a defendant's

possession of a large amount of counterfeit currency supports an

inference that the defendant possessed the currency with a future

intention of use.      See Mousli, 511 F.3d at 16 ("The number and

variety of bills also suggest that Mousli was engaged in an ongoing

effort to produce and refine fake currency with the intent of using

it.").   The judge's instructions in this case were thus entirely

accurate. While Silva suggests that the judge's decision to single

out the amount of currency was unfairly prejudicial because the

prosecution's case relied precisely on this form of evidence in

establishing Silva's fraudulent intent, the judge's decision in


                                     -19-
this regard accorded with his recognized legal prerogative to

incorporate available evidence into jury instructions so as to

clarify   the   governing   legal   standard   for   the   jury.   As   the

government notes, the judge did not seek to analyze or interpret

the government's specific evidence, nor did he opine on whether the

amount of counterfeit currency possessed by Silva rose to the

threshold of establishing an inference of fraudulent intent.            The

jury instructions did not constitute an abuse of discretion by the

district court.

                            III.    Conclusion

           For the foregoing reasons, the district court's decision

is affirmed.

           Affirmed.




                                    -20-
