U.S. v. Gilliard

• Decision Date: 05 April 1988
• Docket Number: No. 87-1893,87-1893
• Parties: UNITED STATES of America, Appellee, v. James GILLIARD a/k/a Jimmy Gillard, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 21

847 F.2d 21

UNITED STATES of America, Appellee, v. James GILLIARD a/k/a Jimmy Gillard, Defendant, Appellant.

No. 87-1893.

United States Court of Appeals First Circuit.

Heard April 5, 1988.

Decided May 26, 1988.

Fred A. Kelly, Jr., with whom J. William Codinha, by Appointment of the Court, Gregory P. Deschenes and Peabody & Brown were on brief for defendant, appellant.

Martin F. Murphy, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., was on brief for appellee.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

James Gilliard appeals his conviction under 18 U.S.C. Sec. 922(g) for unlawful possession of a firearm by a convicted felon. Pursuant to the recidivist provisions of 18 U.S.C. Sec. 924(e), Gilliard was sentenced to fifteen years imprisonment without the possibility of parole. Gilliard makes three arguments on appeal: (1) that the district court erred in not suppressing evidence seized by the police during an investigative stop of Gilliard; (2) that the fifteen-year sentence constitutes cruel and unusual punishment under the eighth amendment; and (3) that the government failed to prove that the firearm in question travelled in or affected interstate commerce. We affirm.

I. BACKGROUND

On January 15, 1987, the Boston Police Department's Drug Control Unit received an anonymous tip that there was ongoing "heavy" drug traffic at the corner of Geneva Avenue and Bowdoin Street in Dorchester, Massachusetts. Two officers were dispatched to the scene. Wearing plain clothes and driving an unmarked car, the officers parked near the intersection to watch for possible drug sales.

At approximately eight o'clock that evening, Gilliard and a companion arrived by automobile at the corner. Gilliard, who was driving, parked the car nearby and walked across the intersection to a garage at 140 Bowdoin Street. The two police officers observed Gilliard as he exited the car and walked across the street to speak with an Hispanic male. During their brief conversation, Gilliard handed to the male what appeared to the officers to be United States currency. Gilliard then proceeded to a nearby store, emerged with a paper bag, and returned to speak with the same Hispanic male. The Hispanic male placed something into the paper bag, and Gilliard returned to the car.

Believing that they had just witnessed an illegal drug transaction, the two police officers pulled their car behind Gilliard's, blocking him in, and then approached his car on either side on foot. The officer on the driver's side identified himself to Gilliard as a Boston police officer and asked Gilliard for his driver's license and automobile registration. Gilliard reached into his back pocket for his wallet and attempted to remove his license, but was shaking nervously and unable to do so. As a protective measure, the officer then asked Gilliard to step out of the car and gave him a pat frisk. During the frisk, the officer felt a large, hard object and, reaching into the inner pocket of Gilliard's jacket, discovered a fully loaded .25 caliber handgun. Gilliard was handcuffed, advised of his Miranda rights and placed in the police car. After acknowledging that he understood his rights, Gilliard, in response to a question, told the officers that he had purchased the handgun for fifty dollars at the corner of Washington Street and School Street in Jamaica Plain.

Although initially charged with violation of Massachusetts state law, Gilliard was never tried on those charges. Instead, he was indicted in federal court for violation of 18 U.S.C. Sec. 922(g), which makes it illegal for any convicted felon to possess a firearm that has travelled in or affected interstate commerce. The indictment also charged Gilliard with violation of 18 U.S.C. Sec. 924(e)(1), a special statute providing stiffer sentences for violations of section 922(g) by recidivists:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g), and such person shall not be eligible for parole with the respect to the sentence imposed under this subsection.

Prior to trial, Gilliard moved to suppress the gun and the statements he had made about it as fruits of an illegal search. A suppression hearing was held by the district court in July of 1987. Both police officers testified about the surveillance and the events surrounding Gilliard's arrest. They also testified that the informant who gave them the tip concerning drug sales at Geneva Avenue and Bowdoin Street--known only to the officers as "It's Me"--had previously given the police information about drug sales in the Dorchester area. Each of these tips had indeed led the police to areas of drug sales and some had led to arrests. "It's Me" had never given the police false leads. Moreover, the officers testified that they knew from previous experience with the Drug Control Unit that the Geneva and Bowdoin corner was "a high-drug-sale area." In support of his motion to suppress, Gilliard presented the testimony of Margaret Soeyfet, his companion in the car at the time of his arrest, who gave a sharply different version of the events of January 15, 1987.

Crediting the officers over Soeyfet, the district court denied the motion to suppress. The court found, first, that based on the background information available to them as well as their observations of the scene, the officers had probable cause to believe that a drug transaction had occurred and hence to arrest Gilliard and search the car. Second, and in the alternative, the court ruled that based on the same criteria, the police had reasonable articulable suspicion to support an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Once that stop was made, the court ruled, the officers also acted reasonably by frisking Gilliard after observing his nervous and erratic behavior in the car. Either way, the court said, the police properly discovered the handgun.

By agreement of the parties, the trial was divided into two phases. During the first phase, the government introduced evidence related solely to Gilliard's possession of the handgun in violation of section 922(g). ¹ The two officers testified essentially as they had at the suppression hearing. The government also presented the testimony of Charles Mudd, an employee of Baretta U.S.A. Corporation, the manufacturer of the handgun found on Gilliard. Mudd testified that the weapon seized bore the serial number BE31733V and that, according to the shipping records of Baretta provided by Mudd, this particular handgun had been shipped at one point from Maryland to Massachusetts. The jury returned a guilty verdict.

During the second phase, the issue was whether Gilliard had been convicted thrice previously of violent felonies, subjecting him to the enhanced penalty provisions of section 924(e). ² Certified copies of three convictions--one for assault and battery with a dangerous weapon and two for robbery--were produced. The jury returned a second guilty verdict. On September 8, 1987, Gilliard was sentenced to the minimum of fifteen years imprisonment under section 924(e). Following the denial of post-trial motions for acquittal and for new trial, this appeal was taken.

II. DENIAL OF THE MOTION TO SUPPRESS

Although the district court made alternative findings to support its denial of the motion to suppress, Gilliard addresses his appellate argument only to the Terry stop issue. Gilliard maintains that the police officers lacked reasonable articulable suspicion to support an investigatory stop. We disagree, finding that the facts in this case make out a much stronger case of reasonable suspicion than "the outermost reaches of a permissible Terry stop" we established in United States v. Trullo, 809 F.2d 108, 111 (1st Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987). Accordingly, we find that there was no error in the district court's Terry stop ruling. We, therefore, need not decide whether there was probable cause for an arrest before the handgun was found.

There are two prongs to Gilliard's Terry argument. First, he claims that the police officers' testimony that Gilliard appeared to hand money to the Hispanic male is inherently incredible and should not be believed. Gilliard points out that this observation was made at eight o'clock in the evening from a distance of 125 to 150 feet and through a car window without any vision enhancement devices. Given these conditions, Gilliard argues, we should overturn the district court's finding that the officers' observations "support an inference that currency had been passed."

"[F]indings by a district court in a suppression hearing are binding on appeal unless they are clearly erroneous." United States v. Wiseman, 814 F.2d 826, 828 (1st Cir.1987). Here, the challenged finding by the district court was based solely on the testimony of the two police officers and amounted to a decision that their testimony was credible. Such credibility determinations "are lodged firmly in the province of the district court and we are loathe to disturb them absent a compelling showing of error." Scarpa v. Murphy, 806 F.2d 326, 328 (1st Cir.1986). We find no clear error here. To begin with, Gilliard has provided no factual or scientific basis for his claim that a transfer of currency by hand could not have been observed under the conditions specified. Without such a basis, we are in no position to second-guess testimony found credible by the district court. Certainly the claimed...