317 F.3d 26 (1st Cir. 2003), 02-1644, U.S. v. Lee

Docket Nº:02-1644
Citation:317 F.3d 26
Party Name:U.S. v. Lee
Case Date:January 17, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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317 F.3d 26 (1st Cir. 2003)

UNITED STATES of America, Appellee,


Ngai Man LEE, Defendant, Appellant.

No. 02-1644

United States Court of Appeals, First Circuit

January 17, 2003

Heard Nov. 6, 2002.

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[Copyrighted Material Omitted]

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Bjorn Lange, Assistant Federal Public Defender, for appellant.

Mark E. Howard, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief, for appellee.

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Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

In this case, a jury convicted defendant-appellant Ngai Man Lee of, inter alia, possession of fifteen or more unauthorized credit cards (known in the statutory argot as "access devices"). On appeal, Lee argues that the district court erred in failing to require jury unanimity as to which fifteen credit cards he possessed. The question is one of first impression at the federal appellate level. Upon reflection, we conclude that the district court appropriately rejected the proffered jury instruction.

The appellant also advances two other assignments of error, namely, (1) that the police officers who questioned and arrested him did so in derogation of his constitutional rights, and (2) that a prejudicial remark uttered at trial demanded the declaration of a mistrial (a course of action eschewed by the district court). We reject, more easily, these assignments of error. When all is said and done, we affirm the judgment below.


We sketch the factual background and the travel of the case. We reserve a fuller discussion of particular facts for our analysis of the appellant's suppression claim.

On September 5, 2001 an employee of an emporium in Salem, New Hampshire reported an attempted credit card fraud. Police officers responded to the shopping plaza where the store was located. They eventually stopped, questioned, and arrested both the appellant and a companion. A total of twenty-two unauthorized credit cards were found in the companion's wallet, the van in which the suspects had been riding, and a dumpster adjacent to a nearby store.

In due season, a federal grand jury indicted both men. The companion pleaded guilty and his case is not now before us. The appellant maintained his innocence. After a trial, a jury convicted him of use and attempted use of unauthorized access devices (count 1) and possession of fifteen or more such devices (count 2).1 The district court imposed concurrent sentences of eighteen months' imprisonment and two years' supervised release. This appeal ensued.


We consider the appellant's claims of error in chronological order. Thus, we start by discussing the district court's denial of the appellant's pretrial motion to suppress. We then turn to the refusal to grant a mistrial. Finally, we address the claim of instructional error.

A. The Suppression Motion.

In considering pretrial rulings on suppression of evidence, we review the district court's answers to questions of law de novo and its findings of fact for clear error. United States v. Schaefer, 87 F.3d 562, 565 (1st Cir. 1996); United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). The ultimate questions on which Fourth Amendment inquiries hinge:—such as the reasonableness of a particular detention or the existence vel non of probable cause— engender plenary review. Ornelas v. United States, 517 U.S. 690, 697-98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Absent an error of law, we will uphold a refusal to suppress evidence as long as the

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refusal is supported by some reasonable view of the record. United States v. Campa, 234 F.3d 733, 737 (1st Cir. 2000).

The appellant's suppression claim is fact-specific. We recount the relevant facts as the trial court found them, consistent with record support. See United States v. Chhien, 266 F.3d 1, 8 (1st Cir. 2001). On the day of the arrest, Salem police received a report of possible credit card fraud at a Service Merchandise outlet. The store's manager related that a young Asian male had tried (but failed) to purchase a $2,300 wristwatch using not one but two platinum American Express cards ostensibly issued in the name of Zhi Lin. When the attempt failed, both the prospective purchaser and his cohort—an Asian man wearing a green shirt and light-colored pants—departed hurriedly and headed for the parking lot.

Officer John Joy responded to the call. Arriving on the scene, Joy's attention was drawn to a white van occupied by the appellant and Manchu He. The two men matched the broadcast description of the suspects. Although the van was stopped in the parking lot, the appellant tried to pull it forward when Joy approached. Finding the way obstructed, the appellant then put the van in reverse and shot back (almost running into Joy's police cruiser). Concerned that the men were trying to flee, Joy blocked their path, turned on his blue lights, drew his firearm, and directed his canine companion to bark. When Joy ordered them to step out of the van and show their hands, the men complied. As soon as they did so, Joy re-holstered his weapon and silenced the police dog.

At that juncture, four more officers arrived. Joy told the appellant why he had been stopped and assured him that he would be free to go if everything "turned out." He then posed a series of questions to him. At the same time, a second officer began interrogating He. In due course, He gave the officer his wallet and granted him permission to withdraw four pinchbeck cards from within it. When He admitted that the name on the cards—Zhi Lin—was not his, the police arrested him.

Meanwhile, Joy continued to converse with the appellant. When Joy noticed several shopping bags in plain view in the rear of the van, he inquired about them. The appellant confirmed that the merchandise belonged to the two men and gave Joy permission to look for the corresponding receipts. A cursory inspection failed to reveal any receipts, and Joy arrested the appellant for receiving stolen property.

The appellant thereafter consented to a search of the van and waived his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 475-79, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966). The search proved fruitful: the police found a cache of fourteen credit cards hidden in two cigarette packs behind the driver's seat some in the name of Zhi Lin and some in the name of Yun Wu Chen). They also recovered receipts for merchandise purchases totaling approximately $16,000.The receipts correlated with the goods found in the van and with the unauthorized credit cards.

That afternoon, an employee of a nearby store found in an adjacent dumpster another four unauthorized credit cards in the name of Yun Wu Chen, together with some identification documents (most of which bore the same name). The employee also reported that an Asian male had entered the store earlier that day but had left after a few minutes of casual conversation.

The appellant mounts a three-pronged challenge in a concerted effort to suppress the fourteen credit cards, the receipts, the merchandise, and statements that he made to the police. This challenge assails the constitutionality of the investigatory stop,

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the propriety of his arrest, and the lawfulness of the authorities' post-arrest activities. We deal with these matters sequentially.

1. The Investigatory Stop. Warrantless investigatory stops are allowable if, and to the extent that, police officers have a reasonable suspicion of wrongdoing—a suspicion that finds expression in specific, articulable reasons for believing that a person may be connected to the commission of a particular crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Woodrum, 202 F.3d 1, 6-7 (1st Cir. 2000). In this case, the police officer relied on the information in the store manager's account, together with what he observed in the parking lot, to draw the inference that the appellant and his companion might be involved in the reported credit card fraud. The district court found this reliance reasonable and the inference of involvement logical. We agree. The two men not only were in the right place at the right time but also fit the suspects' descriptions. This collocation of circumstances plainly satisfied the reasonable suspicion standard for an initial Terry stop. See. United States v. Velez-Saldana, 252 F.3d 49, 53 (1st Cir. 2001); United States v. Jones, 187 F.3d 210, 216-17 (1st Cir. 1999). After all, police officers ordinarily may employ minimally intrusive measures to effectuate legitimate investigatory purposes. See Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Chhien, 266 F.3d at 6-10.

A lawful Terry stop may, of course, metamorphose into an overly prolonged or intrusive detention (and, thus, become unlawful). The appellant raises that specter. Here, however, as in United States v. Sowers, 136 F.3d 24, 27(1st Cir. 1998), the passage of time brought with it new knowledge (e.g., the discovery of the bogus cards in He's wallet and the sighting of the newly acquired merchandise) that escalated the level of suspicion. These emergent developments amply justified the continued detention. Chhien, 26(5 F.3d at 9-10; Sowers, 136 F.3d at 27.

Contrary to the appellant's importunings, this is not a case in which the officers prematurely carried out a de facto arrest. Although there were five officers on the scene, that fact, without more, does not lead inexorably to a conclusion that a de facto arrest occurred. See, e.g., Zapata, 18 F.3d at 975-76; United States v. Quinn, 815 F.2d 153, 157 (1st Cir. 1987). The evidence, taken as a whole, adequately supports the district court's finding...

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