U.S. v. Stierhoff, No. 08-1183.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtSelya
Citation549 F.3d 19
Docket NumberNo. 08-1183.
Decision Date01 December 2008
PartiesUNITED STATES of America, Appellee, v. Neil STIERHOFF, Defendant, Appellant.
549 F.3d 19
UNITED STATES of America, Appellee,
v.
Neil STIERHOFF, Defendant, Appellant.
No. 08-1183.
United States Court of Appeals, First Circuit.
Heard October 8, 2008.
Decided December 1, 2008.

[549 F.3d 21]

Dana A. Curhan for appellant.

Mark S. Determan, Attorney, Tax Division, with whom Nathan J. Hochman, Assistant Attorney General, Robert Clark Corrente, United States Attorney, Alan Hechtkope and Karen M. Quesnel, Attorneys, were on brief, for appellee.

Before LYNCH, Chief Judge, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.


This case began when a young woman complained about a strange man who was harassing her. The state police launched an investigation, which later took an unexpected turn and morphed into an indictment for federal income tax evasion. The tale of how the stalker became the stalked follows.

I. BACKGROUND

We rehearse here only those facts that are useful to place the instant appeal in perspective. In setting forth this account, we take those facts in the light most hospitable to the jury's verdict. See United States v. Diaz, 300 F.3d 66, 69 (1st Cir. 2002). Other factual information is added in our subsequent discussion of particular issues.

In March of 2002, a young woman contacted the Rhode Island State Police and complained about a stalker. She told the troopers that the man had approached her at work, given her unwanted cards and poems, and left poetic messages on her windshield while her car was parked in a dormitory parking lot at Rhode Island College. The troopers traced the suspected stalker through his license plate number and identified him as Neil Stierhoff (the defendant herein).

549 F.3d 22

Between April 4 and April 12, 2002, the troopers conducted a surveillance that tended to confirm their suspicions about the defendant's obsession with the complainant. They then devised a sting operation that played out on the night of April 12. The sting worked, and the troopers arrested the defendant on the spot.

Following the arrest, the troopers read the defendant his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and queried him about his activities vis-à-vis the complainant. This interrogation left the troopers with a desire to learn more about both the defendant's true identity and the poems he had written. In an effort to fill those investigative gaps, the troopers asked the defendant to authorize a search of his residence (a rented room on the second floor of a house at 25 Hollywood Road in Providence). The defendant acquiesced, perusing and signing a proffered consent-to-search form. The troopers then transported him to the Hollywood Road address.

The defendant was present during the ensuing search. The troopers found a treasure trove of interesting items. These items included the computer on which the defendant had composed the poems, greeting cards similar to those delivered to the complainant, a briefcase containing $100,000 in cash, another $40,000 in cash lodged in a desk drawer, and a myriad of financial documents. The troopers proceeded to make inquiries about the cash and a bank statement.

We need not linger over the details of the interrogation. It suffices to say that the troopers concluded that the defendant had been operating a highly lucrative business featuring the sale of used electronic equipment over the internet. When they noticed that the aforementioned bank statement bore the name "Joseph Adams," the defendant explained that he used that pseudonym in conducting this business. As to the large sums of cash on hand, he ventured that he neither trusted banks nor paid any taxes (federal or state).

Later that evening, the troopers conducted a search of a storage unit leased by the defendant (who signed another consent-to-search form in connection therewith). At the storage unit, the troopers discovered high-end computer equipment and a salmagundi of business records. The documents bore a wide range of individual and entity names, most of which comprised variations on the "Joseph Adams" pseudonym.

In due course, the troopers contacted the Internal Revenue Service (IRS) and relayed pertinent portions of the information they had unearthed to that federal agency. The IRS initiated its own investigation. That probe confirmed the defendant's aversion to the payment of federal income taxes.

From there, the defendant found himself under attack on two fronts. The state successfully prosecuted him on charges related to his stalking activities. See State v. Stierhoff (Stierhoff I), 879 A.2d 425 (R.I. 2005). That conviction is final and need not concern us.

The other shoe dropped on March 22, 2006, when a federal grand jury in the District of Rhode Island handed up an indictment charging the defendant with four counts of income tax evasion covering calendar years 1999, 2000, 2001, and 2002, respectively, in violation of 26 U.S.C. § 7201. The government asserted that the defendant had total unreported taxable income of approximately $1,250,000 during this four-year span and that he owed nearly $460,000 in back taxes.

After some pretrial skirmishing, see, e.g., United States v. Stierhoff (Stierhoff II),

549 F.3d 23

477 F.Supp.2d 423 (D.R.I.2007), a trial jury found the defendant guilty on all counts. In the aftermath of the verdict, the defendant renewed his earlier motions for dismissal of the indictment, judgment of acquittal, and the declaration of a mistrial. He simultaneously moved for a new trial. See Fed.R.Crim.P. 33. The district court denied all the motions in an erudite rescript. See United States v. Stierhoff (Stierhoff III), 500 F.Supp.2d 55, 72 (D.R.I.2007). For the most part, the details of those motions are unimportant; the majority of the legal theories on which they rested have not been resuscitated on appeal.

On February 1, 2008, the district court sentenced the defendant to concurrent 46-month incarcerative terms on the four counts of conviction. This timely appeal followed.

II. ANALYSIS

Before us, the defendant advances five assignments of error. These implicate the district court's purported failures (i) to suppress evidence; (ii) to recognize the government's duty to prove that he was a person subject to the tax code; (iii) to grant judgment of acquittal premised upon evidentiary insufficiency; (iv) to cabin the use of a summary witness; and (v) to limit its sentencing calculus to facts found by the jury. We address these claims sequentially.

A. Suppression.

The defendant calumnizes the district court's refusal to suppress evidence of the cash found in his briefcase during the search of his room. He argues that a closed briefcase was not within the scope of the consent given. This argument is flawed in several respects.

The threshold question is one of waiver. The defendant asserted below, in relevant part, that his consent was limited to a search of a particular computer file folder. The district court accepted this argument with respect to the search of his computer hard drive, Stierhoff II, 477 F.Supp.2d at 442, but disagreed that the consent was limited vis-à-vis the search of the room, id. at 436. The defendant's claim on appeal is more nuanced; he does not protest the district court's determination that the room search was within the scope of the consent but, rather, contends that even if the scope of the consent extended into the room, it did not extend to a closed briefcase within the room.

Noting this shift in emphasis, the government maintains that there has been a waiver. See Fed.R.Crim.P. 12(b)(3). It is arguable that the government's position is correct. See, e.g., United States v. Torres, 162 F.3d 6, 11 (1st Cir.1998) (stating that waiver "applies not only when a defendant has failed altogether to make a suppression motion but also when, having made one, he has neglected to include the particular ground that he later seeks to argue"). We choose, however, not to resolve the waiver question. Because the defendant's contention is easily dispatched on the merits, we address it frontally.

It is apodictic that a warrantless search may be conducted with the voluntary consent of a person authorized to give it. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The scope of a consensual search is generally defined by its expressed object, and such a search may not exceed the scope of the consent given. United States v. Marshall, 348 F.3d 281, 286-87 (1st Cir.2003). Typically, courts look beyond the formal wording of the consent itself to the totality of the circumstances that inform the meaning of those words in a given situation. Id. This includes, but is by no means limited to, "contemporaneous

549 F.3d 24

police statements and actions." United States v. Meléndez, 301 F.3d 27, 32 (1st Cir.2002).

Notwithstanding the fact-specific nature of an inquiry into the scope of consent, some general principles remain in play. One such principle is relevant here: "a general consent to search ... subsumes the specific consent to search any easily accessible containers" that may be located within the designated search area. United States v. Zapata, 18 F.3d 971, 977 (1st Cir.1994) (citing Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)).

The circumstances here do not suggest any special limitations on the scope of either the consent or the search. The troopers employed a generic consent form, which itself did not restrict the contemplated search in any way. Furthermore, the form referred generally to "letters, papers, or other property." This boilerplate language, unmodified, indicates an intention to go well beyond a mere computer search.

In an effort to overcome this impression, the defendant notes that the troopers told him that they wanted to look for "poems." He maintains that he signed the form while telling the troopers that the evidence they sought could be found on his computer. On this...

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69 practice notes
  • United States v. Cohen, CRIMINAL NO.: WDQ-14-0310
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 7 Mayo 2015
    ...by the Fourth Circuit in Williams. Cohen also relies on United States v. Stierhoff, 477 F. Supp. 2d 423, 443 (D.R.I. 2007) aff'd, 549 F.3d 19 (1st Cir. 2008), which, in turn, relies in part on Carey. See ECF No. 189 at 2; Stierhoff, 477 F. Supp. 2d at 443, 448. 81. See also United States v.......
  • Commonwealth v. Valdivia, No. 9 MAP 2017
    • United States
    • United States State Supreme Court of Pennsylvania
    • 17 Octubre 2018
    ...approach, as every United States Circuit Court of Appeals has employed such inquiry. See, e.g. , United States v. Stierhoff , 549 F.3d 19, 24 (1st Cir. 2008) ("We add that the defendant's present statement of his subjective belief that the search would be strictly limited to his computer la......
  • United States v. Tavares, No. 14-2319
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 1 Diciembre 2016
    ...admit or exclude evidence for abuse of discretion. SeeUnited States v. Pires, 642 F.3d 1, 10 (1st Cir. 2011) ; United States v. Stierhoff, 549 F.3d 19, 27 (1st Cir. 2008). In carrying out this task, we afford "broad deference to the determination made by the district court as to the reliabi......
  • Commonwealth v. Gelfgatt, SJC–11358.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 25 Junio 2014
    ...States v. Carey, 172 F.3d 1268, 1270–1273 (10th Cir.1999); United States v. Stierhoff, 477 F.Supp.2d 423, 439 n. 8 (D.R.I.2007), aff'd, 549 F.3d 19 (1st Cir.2008). See generally Goldfoot, The Physical Computer and the Fourth Amendment, 16 Berkeley J. Crim. L. 112 (2011); Kerr, Searches and ......
  • Request a trial to view additional results
68 cases
  • United States v. Cohen, CRIMINAL NO.: WDQ-14-0310
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 7 Mayo 2015
    ...by the Fourth Circuit in Williams. Cohen also relies on United States v. Stierhoff, 477 F. Supp. 2d 423, 443 (D.R.I. 2007) aff'd, 549 F.3d 19 (1st Cir. 2008), which, in turn, relies in part on Carey. See ECF No. 189 at 2; Stierhoff, 477 F. Supp. 2d at 443, 448. 81. See also United States v.......
  • Commonwealth v. Valdivia, No. 9 MAP 2017
    • United States
    • United States State Supreme Court of Pennsylvania
    • 17 Octubre 2018
    ...approach, as every United States Circuit Court of Appeals has employed such inquiry. See, e.g. , United States v. Stierhoff , 549 F.3d 19, 24 (1st Cir. 2008) ("We add that the defendant's present statement of his subjective belief that the search would be strictly limited to his computer la......
  • United States v. Tavares, No. 14-2319
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 1 Diciembre 2016
    ...admit or exclude evidence for abuse of discretion. SeeUnited States v. Pires, 642 F.3d 1, 10 (1st Cir. 2011) ; United States v. Stierhoff, 549 F.3d 19, 27 (1st Cir. 2008). In carrying out this task, we afford "broad deference to the determination made by the district court as to the reliabi......
  • Commonwealth v. Gelfgatt, SJC–11358.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 25 Junio 2014
    ...States v. Carey, 172 F.3d 1268, 1270–1273 (10th Cir.1999); United States v. Stierhoff, 477 F.Supp.2d 423, 439 n. 8 (D.R.I.2007), aff'd, 549 F.3d 19 (1st Cir.2008). See generally Goldfoot, The Physical Computer and the Fourth Amendment, 16 Berkeley J. Crim. L. 112 (2011); Kerr, Searches and ......
  • Request a trial to view additional results
1 books & journal articles
  • TAX VIOLATIONS
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • 1 Julio 2021
    ...that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers.”); United States v. Stierhoff, 549 F.3d 19, 26 (1st Cir. 2008) (requiring a “voluntary, intentional violation” to establish willfulness). 116. See United States v. Pomponio, 429 U.S. 10,......

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