U.S. v. Cruz

• Decision Date: 03 June 1998
• Docket Number: No. 97-2167,97-2167
• Citation: 156 F.3d 22
• Parties: UNITED STATES, Appellee, v. James CRUZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 22

156 F.3d 22

UNITED STATES, Appellee, v. James CRUZ, Defendant, Appellant.

No. 97-2167.

United States Court of Appeals, First Circuit.

Heard June 3, 1998.

Decided Aug. 17, 1998.

Henry W. Griffin, by appointment of the Court, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and George T. Dilworth, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Chief Judge, SELYA, Circuit Judge, and SCHWARZER, ^* Senior District Judge.

TORRUELLA, Chief Judge.

Appellant was charged, tried and convicted by a jury pursuant to allegations contained in a multiple count indictment in which the government claimed that he conspired to distribute a controlled substance in violation of 21 U.S.C. §§ 841 and 846, and engaged in violations of 18 U.S.C. §§ 922(g)(1), 922(g)(3), 924(c)(1), 924(e)(1), and 26 U.S.C. §§ 5841, 5861(d), and 5871, which all deal with the felonious possession of firearms in various circumstances. Thereafter, he was sentenced to imprisonment for 420 months to be followed by 8 years of supervised release.

Five issues are raised on appeal: (1) the legality of the search that led to the charges for which appellant was prosecuted and convicted; (2) the sufficiency of the evidence presented to establish proof beyond a reasonable doubt (and thus the validity of the district court's ruling denying appellant's motion for judgment of acquittal); (3) the district court's failure to declare a mistrial upon appellant's motion after alleged juror misconduct was called to the court's attention; (4) whether the district court's instructions to the jury regarding the government's allegedly improper statements in its closing argument were sufficient to avoid the need for a new trial; and (5) whether appellant was properly sentenced as an "armed career criminal." These issues will be discussed seriatim. In a separate brief, appellant challenges pro se the admission of certain evidence as well as certain remarks made by the government in its opening statement. We address these pro se arguments at the end of the opinion. Ultimately, we affirm the rulings of the district court.

I. The Motion To Suppress

A. The facts

At approximately 1:22 a.m. on August 23, 1996, appellant was detained by a state policeman for driving at 88 mph, which is in excess of the legal speed limit of 65 mph for the Maine Turnpike. As the officer approached appellant's vehicle, he observed a commotion among the occupants. There were three young males in the back seat, an adult female in front next to the driver, and an adult male driver. The officer asked the driver, who turned out to be appellant, to step outside the vehicle and to produce his driver's license, vehicle registration and insurance documentation. While this was taking place, the officer noticed that appellant's shirt was untucked, whereupon he asked appellant to lift his shirt so that his waistband was exposed. Nothing unusual was revealed.

The officer then conducted a patdown search of appellant, during the course of which he discovered a jackknife and a syringe and needle in his pants pockets. Appellant was placed under arrest for possession of illegal drug paraphernalia. ¹

After appellant was arrested, the officer proceeded to search the other occupants of the car. The sum of $5,000 cash was discovered in the purse of the female passenger, who was later identified as appellant's then-girlfriend Ericka Thibodeau, and a 9-mm pistol was recovered from her person. Thereafter, the officer found an ammunition magazine for the pistol on the floor of the car between the front and back seats. An additional magazine and three loose rounds were later found on the floor of the officer's car, directly behind where appellant had been placed after his arrest. Two rounds of 9-mm ammunition were also found tucked between the cushions of the seat that appellant had occupied.

B. Was the pat-down of appellant a permissible Terry stop and frisk?

Appellant questions the validity of his frisk by the Maine officer as being beyond the scope permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and seeks the suppression of all evidence discovered, claiming it is "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In this respect it is important to keep in mind that the district court's findings of fact are reviewable only for clear error, although its legal conclusions receive de novo treatment. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

Because appellant concedes that Terry permits the police to stop a person to investigate upon a reasonable suspicion that a crime has been committed, and because appellant does not contest the fact that he was violating the speed limit when he was stopped, our inquiry is narrow in scope. Was appellant's search after the legitimate stop reasonable under the circumstances?

We first look to whether the officer acted properly in ordering appellant to step outside his vehicle upon being stopped. The district court in effect concluded that the officer's suspicions were justifiably heightened, not only by the abrupt manner in which appellant's vehicle pulled over and came to a stop, but "by the exaggerated level of movement of the occupants of the car as it came to a stop, particularly those of the passenger in the right front seat." Given these findings, which are fully supported by the record, the officer's request that appellant step outside his automobile was justified. See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 885, 137 L.Ed.2d 41 (1997) (noting that, once vehicle lawfully stopped for traffic violation, constitutionally permissible for officer to order driver to get out of vehicle).

The next and final step of this inquiry is whether appellant's frisk, which provided the immediate cause for his arrest and which uncovered some of the incriminating evidence for which he was charged and convicted, was appropriate under Terry.

This step need not detain us long. Analyzing the propriety of a frisk involves a two-part inquiry, in which no single factor is controlling: "first ... [one must determine] whether the officer's action was justified at its inception, and second, whether the action taken was reasonably related in scope to the circumstances which justified the interference in the first place." United States v. Walker, 924 F.2d 1, 3 (1st Cir.1991) (quoting United States v. Stanley, 915 F.2d 54, 55 (1st Cir.1990)). The court must consider the circumstances as a whole, and must balance the nature of the intrusion with the governmental interests that are served. United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).

The circumstances of this stop are such that the officer would have been "foolhardy" not to have frisked appellant for weapons. See Walker, 924 F.2d at 4. In particular, the time of day and location of the incident, the excessive speed at which the vehicle was driven, the manner in which it came to a stop, and the unexplained commotion among its occupants who outnumbered the police officer five to one, was sufficient cause to conduct the initial limited patdown of appellant's front pants pockets, in which contraband was in fact discovered. What followed has been fully recounted and need not be repeated, but was certainly not "poisoned fruit."

"The Fourth Amendment by its terms prohibits 'unreasonable' searches and seizures." New York v. Class, 475 U.S. 106, 116, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). The stop and ensuing search were reasonable under the circumstances and thus the ruling of the district court denying suppression of the evidence is affirmed.

II. The Sufficiency of the Evidence

In considering a motion for judgment of acquittal, both the trial and reviewing courts must evaluate the evidence and such reasonable inferences as arise therefrom in the light most favorable to the government. United States v. Loder, 23 F.3d 586, 589 (1st Cir.1994).

Appellant's arguments go principally to the credibility of various government witnesses, and are thus in large measure addressed to the wrong forum. See United States v. Meader, 118 F.3d 876, 881 (1st Cir.1997) (finding credibility assessments to be uniquely the domain of the jury).

A. 18 U.S.C. § 924(c)(1)

Count VII of the indictment charges appellant with using and carrying a firearm in violation of 18 U.S.C. § 924(c)(1). Since this relates to the use or carrying of a firearm during and in relation to the drug crime alleged in Count I, we must look first to the government's proof in that respect.

In Count I of the indictment, appellant was charged with engaging in a conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. At least 8 witnesses testified that throughout the summer of 1996, they and others purchased crack cocaine from appellant. Each of these witnesses corroborated the other seven, and their testimony was also confirmed by the introduction of evidence seized from appellant's premises, which included cash, drugs, and drug paraphernalia. Viewing this evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the government, we find that there was enough evidence to allow a reasonable jury to convict on Count I.

Turning to the proof regarding Count VII, the evidence is equally overwhelming that appellant carried the 9-mm pistol that was introduced into evidence during the various phases of his drug deals, including during purchases, transportation, and, most bone-chillingly described by several witnesses, during drug-debt-collection episodes. Count VII was well proven.

B. 18 U.S.C. §§ 922(g)(1) and 924(e)(1)

The above evidence is also relevant to the Count VIII charge which alleges his condition as a felon in possession with respect to...