881 F.3d 14 (1st Cir. 2018), 15-2298, United States v. Kennedy

Docket Nº:15-2298
Citation:881 F.3d 14
Opinion Judge:KAYATTA, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Joseph J. KENNEDY, Defendant, Appellant.
Attorney:Oscar Cruz, Jr., Assistant Federal Public Defender, and Amy Barsky, Research and Writing Specialist, Federal Public Defender Office, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Judge Panel:Before Torruella, Kayatta, and Barron, Circuit Judges.
Case Date:January 24, 2018
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 14

881 F.3d 14 (1st Cir. 2018)

UNITED STATES of America, Appellee,


Joseph J. KENNEDY, Defendant, Appellant.

No. 15-2298

United States Court of Appeals, First Circuit

January 24, 2018

Page 15


Oscar Cruz, Jr., Assistant Federal Public Defender, and Amy Barsky, Research and Writing Specialist, Federal Public Defender Office, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Torruella, Kayatta, and Barron, Circuit Judges.


KAYATTA, Circuit Judge.

Page 16

Joseph Kennedy appeals his conviction and sentence for being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Challenging his conviction, Kennedy argues that the district court erred in denying his motion to suppress evidence obtained from a warrantless search of the vehicle he was driving immediately before his arrest. Challenging his sentence, he argues that the district court erred in finding that he qualified for a mandatory minimum sentence under the Armed Career Criminal Act (" ACCA" ). We affirm Kennedy’s conviction, but vacate his sentence and remand for resentencing.

I. Background

We draw from the district court’s findings of fact for the circumstances leading to Kennedy’s arrest and indictment. In the spring of 2014, Kennedy was on federal supervised release when a warrant issued for his arrest based on allegations that he had violated the terms of his supervision. While several officers from the Boston Police Department and the United States Marshals Service were conducting surveillance in Charlestown, Massachusetts at the address of Kennedy’s longtime girlfriend, the Quincy Police Department transmitted a " Be On the Lookout" bulletin. The bulletin explained that Kennedy was wanted for a larceny that had occurred in Quincy, Massachusetts the night before. The surveillance team learned, from a United States Marshal who communicated the information in the bulletin, that the larceny had involved the theft of a safe containing ammunition and possibly weapons, pepper spray, and drugs. The officers were also told that Kennedy might be driving a gray Honda Fit and were provided with the license plate number of that vehicle.

Later that afternoon, a gray Honda Fit matching the bulletin’s description approached the surveillance location. One officer recognized Kennedy as the driver of the car from a photograph he had been shown previously. Kennedy parked the car legally near his girlfriend’s apartment and exited the vehicle. When the officers approached Kennedy to arrest him, he ran away but was quickly apprehended. He was handcuffed and removed from the scene. Once Kennedy was secured and away from the car, one of the officers approached the Honda Fit. Through the window of the vehicle, the officer could see clutter on the backseat, including duffel bags, garbage bags, backpacks, and clothing. He also saw a large, box-shaped object on the backseat mostly covered by a duffle bag. A small visible portion of the box appeared to be gray and metallic. Believing the object to be the stolen safe, the officers decided to tow the vehicle. Before doing so, they opened the car and searched it. Inside, they uncovered a forced-open safe containing drug paraphernalia and the ammunition that served as the basis for Kennedy’s charge in this case.

After Kennedy was indicted, he moved to suppress all evidence stemming from the warrantless search of the Honda Fit, on the grounds that the search violated the Fourth Amendment. After a one-day evidentiary hearing, at which two officers testified, the court denied the motion, finding that the automobile exception applied and, in the alternative, that the officers had probable cause to believe the car itself had been used during the theft and therefore was the proper subject of an inventory search. Kennedy subsequently entered a conditional guilty plea, reserving the right to appeal the court’s denial of his motion to suppress.

At sentencing, the primary issue was whether Kennedy qualified for a sentencing enhancement under the ACCA based on state crimes to which he had previously

Page 17

pled guilty. The parties presented arguments regarding six potential predicates: two convictions for Massachusetts assault with a dangerous weapon (" ADW" ), three convictions for Massachusetts assault and battery with a dangerous weapon (" ABDW" ), and one for Massachusetts aggravated assault and battery (" AA&B" ). The court found that it was bound by First Circuit law to count the two ADW offenses as violent felonies and therefore as qualifying ACCA convictions.

As to the remaining offenses, the district court began by looking at the plea colloquy between Kennedy and the state court. The transcript of the colloquy showed that Kennedy had been charged with both AA&B and ABDW resulting from the same incident. In that incident, as described by the prosecutor, Kennedy and another attacker approached the victim, one of the two attackers punched him, the victim fell backward and hit his head on a pole, and both Kennedy and the other attacker continued to punch and kick the victim once he was on the ground. Kennedy was charged with one count of AA&B and three counts of ABDW, one for assault and battery with a pole and two for assault and battery with a " shod foot," due to repeated kicks to the victim.

After the prosecutor recited these facts at the plea hearing, the state court asked Kennedy various questions about his plea. Several of Kennedy’s responses to important questions such as " Did you commit those acts?" were deemed " Unintelligible" by the reporter who completed the transcript, which was not requested until long after the proceeding. At sentencing in the district court, the government presented a common-sense argument regarding how the court should interpret the incomplete transcript of the plea colloquy: If any of Kennedy’s responses had been " No," or if Kennedy had vacillated at all, the state court would have stopped and asked follow-up questions, rather than immediately continuing with the colloquy. The government also explained that it had listened to the audio of the state court proceeding and, although it could not make out Kennedy’s responses, it could tell that they were very brief, consistent with one-word answers. Finally, the government emphasized that after asking Kennedy numerous questions, the state court asked, " Have you been confused with any of my questions?" to which Kennedy audibly responded " I have not." On this basis, the government urged the district court to infer that Kennedy had answered " Yes" to the key questions by the state court (and " No" where appropriate).

Accepting the government’s interpretation of the plea colloquy transcript, the district court found that Kennedy had pled guilty to three additional offenses (AA&B, ABDW with a pole, and ABDW with a shod foot) that constituted violent felonies, any one of which, when added to the two ADW offenses, was sufficient to satisfy the ACCA. The court therefore applied the ACCA enhancement and sentenced Kennedy to 180 months’ imprisonment, the minimum sentence under the statute. This timely appeal followed.

II. Discussion

We discuss in turn Kennedy’s two objections to the proceedings below, beginning with the suppression challenge.


In reviewing the denial of a motion to suppress, we review factual findings for clear error and conclusions of law, including ultimate constitutional determinations such as the existence of probable cause, de novo. See

Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); see also

Page 18

United States v. Camacho, 661 F.3d 718, 724, 726-27 (1st Cir. 2011) (reviewing the district court’s determination of reasonable suspicion de novo).

Under the automobile exception to the Fourth Amendment’s warrant requirement, see California v. Acevedo, 500 U.S. 565, 579, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), the question before us is whether the totality of the circumstances created a " fair probability that ... evidence of a crime" would be found in the Honda Fit. United States v. Dion, 859 F.3d 114, 132 (1st Cir. 2017) (alteration in original) (quoting United States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014)). When the officers searched the vehicle, they knew the following information: Kennedy was wanted for the theft of a safe containing ammunition and possibly other items that had occurred the previous night; there was clutter in the backseat of the vehicle he had been driving immediately before his arrest, including bags and clothing piled on top of what appeared to be a large, box-shaped item consistent with the size and shape of a safe; and the small portion of the box-shaped item that was exposed appeared gray in color and metallic. These were all facts found by the district court based on the testimony of two of the police officers involved in Kennedy’s arrest, and these findings were not clearly erroneous. See Camacho, 661 F.3d at 723 (" A clear error exists only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made." (internal quotation marks omitted)); United States v. Barnes, 506 F.3d 58, 62 (1st Cir. 2007) (" Clear error does not exist if any reasonable view of the evidence supports the decision." (internal quotation marks omitted)). This factual basis— together with reasonable inferences drawn therefrom— was sufficient to establish a " fair probability" that evidence of the larceny would be found inside the vehicle. Dion, 859...

To continue reading