U.S. v. Coccia

• Decision Date: 05 May 2006
• Docket Number: No. 03-1674.,03-1674.
• Citation: 446 F.3d 233
• Parties: UNITED STATES of America, Appellee, v. Larry J. COCCIA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

446 F.3d 233

UNITED STATES of America, Appellee, v. Larry J. COCCIA, Defendant, Appellant.

No. 03-1674.

United States Court of Appeals, First Circuit.

Heard August 2, 2005.

Decided May 5, 2006.

COPYRIGHT MATERIAL OMITTED

Raymond E. Gillespie on brief for appellant.

S. Waqar Hasib, Special Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, SILER,^* Senior circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

Defendant Larry Coccia appeals, on several grounds, his conviction for possession of a firearm while subject to a domestic restraining order, pursuant to 18 U.S.C. § 922(g)(8). We affirm.

I.

We present the facts in the light most favorable to the verdict, see United States v. Boulerice, 325 F.3d 75, 79 (1st Cir.2003), reserving a discussion of some facts for our analysis. Coccia, a retired U.S. Air Force officer, was in the midst of a difficult divorce in Pennsylvania in 2001. A Pennsylvania family court had issued a domestic restraining order against Coccia on April 2, 2001. The order forbade him from abusing, harassing, or threatening his wife or children, and from "possessing, transferring or acquiring any weapons" for one year from the date of the order.

To increase his chances of securing more favorable visitation rights with his children, Coccia traveled to New England to seek a favorable psychological evaluation from an "Ivy League" doctor. Ultimately, he secured an appointment with a psychiatrist, Dr. Margaret McGovern, in Wellesley, Massachusetts. Coccia met with Dr McGovern on three consecutive days in November 2001.

During the first session, Dr. McGovern became "spooked" by her new patient, who refused to provide any information about where he was staying. Concerned for her safety, Dr. McGovern arranged to have her daughter call during the second session to confirm that she was safe. Matters worsened at the second session. Coccia stated that he might plan a bombing or disperse anthrax; that he was capable of such things based on his military experience; that Dr. McGovern would read about his actions in the papers; that he would go after President Bush; and that he had been previously caught with firearms in his car in Maryland in violation of a judge's order. Dr. McGovern was sufficiently troubled by Coccia's comments that she called the FBI before the third session.¹ Two FBI agents, accompanied by two Wellesley police officers, including Detective Jill McDermott, met with Dr. McGovern shortly before the appointment. Dr. McGovern and the officers agreed that, in light of Coccia's comments, a more extensive in-patient psychiatric evaluation was warranted.

Coccia arrived in a rental car, jam-packed with his personal possessions, and parked in Dr. McGovern's circular driveway directly in front of her front door.² Dr. McGovern met with Coccia, informed him that the she had called the FBI, and notified Coccia that FBI agents were waiting for him. Thereafter, while the officers and agents met with Coccia, Dr. McGovern prepared a "pink paper", i.e., an order from a medical professional providing for the involuntary commitment and psychiatric evaluation of an individual thought to be a danger to himself or others.³ Coccia was upset and hostile. He discussed his divorce, the custody proceedings, and his intent to relocate to Colorado. But he did not answer the officers' questions about where he was staying in Massachusetts. Upon learning that his car would be towed, Coccia refused to give his car keys to the officers or consent to a search of the vehicle. While awaiting the ambulance, Coccia called his sister in Michigan to tell her what was happening to him.

After Coccia was taken away, Detective McDermott and her partner arranged to tow Coccia's vehicle. A subsequent inventory search at the Wellesley Police Department's impound lot revealed several double-edged knives, a replica pistol, and a rifle case. At this point, Detective McDermott and her partner obtained a search warrant. After obtaining the warrant, the officers opened Coccia's rifle case, which contained an assault rifle and approximately 1300 rounds of ammunition. The officers also found documentation regarding the divorce and child custody actions, a copy of the restraining order, a knapsack containing over $160,000 in cash, and a receipt for a recent purchase of ammunition.

Coccia was indicted on one count of violating 18 U.S.C. § 922(g)(8), which outlaws possession of a firearm by anyone subject to a domestic restraining order. He moved to suppress the firearm on the ground that the decision by the Wellesley police officer to impound his vehicle violated his Fourth Amendment rights. He argued that the seizure of his vehicle was unreasonable because he could have made other arrangements to remove it from Dr. McGovern's driveway. At the suppression hearing, Dr. McGovern and McDermott testified for the government. Terri Torres, Coccia's sister, and Tim Aiken, a friend of Coccia's, testified for the defense that other arrangements could have been made for Coccia's vehicle. The district court denied the motion and held that the towing decision was reasonable under the circumstances.

At trial, the government presented the testimony of McDermott and a firearms expert, as well as documentary and physical evidence. Coccia elected to represent himself, with standby counsel assisting him, and took the stand on his own behalf. He testified that he was heartbroken by his family situation and desperately trying to improve it, had not said anything inappropriate to Dr. McGovern, had purchased the gun and ammunition as an investment many years before, had never fired the gun, had never seen the restraining order, and was in the process of moving to Colorado. Coccia's parents and sister testified regarding Coccia's character and family travails.

The jury convicted him, and the district court, departing upward from the applicable guidelines sentencing range based upon Coccia's dangerousness, sentenced him to sixty months' imprisonment. This appeal followed.

II.

Coccia raises several challenges to his conviction. First, he argues that the district court erred in denying his motion to suppress. Second, he asserts that the court erred in denying his motion for acquittal on the ground that the Pennsylvania restraining order did not contain the restrictions explicitly required by 18 U.S.C. § 922(g)(8)(C)(ii). Third, he contends that § 922(g)(8) is unconstitutional under the Second Amendment, the Tenth Amendment, the Due Process Clause of the Fifth Amendment, and the Commerce Clause.⁴

A. Motion to Suppress

Coccia contests the towing of his car from Dr. McGovern's property as an unreasonable seizure in violation of the Fourth Amendment.⁵ The government responds that the decision by the police officers to impound the car was a reasonable exercise of their community caretaking function.

We consider Coccia's claim under a bifurcated standard. See United States v. Kornegay, 410 F.3d 89, 93 (1st Cir.2005). We review factual findings for clear error and legal conclusion de novo. See United States v. Meada, 408 F.3d 14, 20 (1st Cir. 2005). In so doing, "we will uphold a denial of a motion to suppress if any reasonable view of the evidence supports it." United States v. Garner, 338 F.3d 78, 80 (1st Cir.2003).

Generally, a law enforcement officer may only seize property pursuant to a warrant based on probable cause describing the place to be searched and the property to be seized. See Horton v. California, 496 U.S. 128, 133 n. 4, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). There are, however, exceptions to this requirement, including the community caretaking exception.⁶ See Cady v. Dombrowski, 413 U.S. 433, 446-447, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The community caretaking exception recognizes that the police perform a multitude of community functions apart from investigating crime. In performing this community caretaking role, police are "expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing and provide an infinite variety of services to preserve and protect public safety." United States v. Rodriguez-Morales, 929 F.2d 780, 784-85 (1st Cir.1991). Relevant here, the community caretaking function encompasses law enforcement's authority to remove vehicles that impede traffic or threaten public safety and convenience. See S. Dakota v. Opperman, 428 U.S. 364, 368-69, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Coccia acknowledges the community caretaking exception, but, citing Opperman and Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), he argues that the community caretaking exception does not apply to the impoundment of his car because the government failed to establish that the car was towed from Dr. McGovern's property pursuant to standard operating procedures. We disagree with his contention that the absence of standardized criteria invalidates the impoundment at issue in this case.

Neither Opperman nor Bertine holds that the impoundment of a vehicle conducted in the absence of standardized protocols is a per se violation of the Fourth Amendment. Indeed, Opperman does not even concern impoundments. Its focus is on the need for standards to govern inventory searches conducted after a lawful impoundment. See also Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (stating that criteria or standardized routine must guide an officer's discretion during an inventory search); United States v. Hellman, 556 F.2d 442, 444 (9th Cir.1977) ("It is the inventorying practice and not the impounding practice that, if routinely followed . . . could render the inventory search a reasonable search under Opperman.").

Bertine as well was concerned primarily with the constitutionality of an inventory search. It is true that the Court did state that the impoundment of...