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<pre> United States Court of Appeals <br> For the First Circuit <br> ____________________ <br> <br> <br>No. 97-2167 <br> <br> UNITED STATES, <br> <br> Appellee, <br> <br> v. <br> <br> JAMES CRUZ, <br> <br> Defendant, Appellant. <br> <br> ____________________ <br> <br> APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF MAINE <br> <br> [Hon. Gene Carter, U.S. District Judge] <br> <br> ____________________ <br> <br> Before <br> <br> Torruella, Chief Judge, <br> <br> Selya, Circuit Judge, <br> <br>and Schwarzer, Senior District Judge. <br> <br> _____________________ <br> <br> Henry W. Griffin, by appointment of the Court, for appellant. <br> Margaret D. McGaughey, Assistant United States Attorney, with <br>whom Jay P. McCloskey, United States Attorney, and George T. <br>Dilworth, Assistant United States Attorney, were on brief, for <br>appellee. <br> <br> <br> ____________________ <br> <br> August 17, 1998 <br> ____________________ <br> TORRUELLA, Chief Judge. Appellant was charged, tried and <br>convicted by a jury pursuant to allegations contained in a multiple <br>count indictment in which the government claimed that he conspired <br>to distribute a controlled substance in violation of 21 U.S.C. <br> 841 and 846, and engaged in violations of 18 U.S.C. <br> 922(g)(1), 922(g)(3), 924(c)(1), 924(e)(1), and 26 U.S.C. <br> 5841, 5861(d), and 5871, which all deal with the felonious <br>possession of firearms in various circumstances. Thereafter, he <br>was sentenced to imprisonment for 420 months to be followed by 8 <br>years of supervised release. <br> Five issues are raised on appeal: (1) the legality of the <br>search that led to the charges for which appellant was prosecuted <br>and convicted; (2) the sufficiency of the evidence presented to <br>establish proof beyond a reasonable doubt (and thus the validity of <br>the district court's ruling denying appellant's motion for judgment <br>of acquittal); (3) the district court's failure to declare a <br>mistrial upon appellant's motion after alleged juror misconduct was <br>called to the court's attention; (4) whether the district court's <br>instructions to the jury regarding the government's allegedly <br>improper statements in its closing argument were sufficient to <br>avoid the need for a new trial; and (5) whether appellant was <br>properly sentenced as an "armed career criminal." These issues <br>will be discussed seriatim. In a separate brief, appellant <br>challenges pro se the admission of certain evidence as well as <br>certain remarks made by the government in its opening statement. <br>We address these pro se arguments at the end of the opinion. <br>Ultimately, we affirm the rulings of the district court. <br>I. The Motion To Suppress <br> A. The facts <br> At approximately 1:22 a.m. on August 23, 1996, appellant <br>was detained by a state policeman for driving at 88 mph, which is <br>in excess of the legal speed limit of 65 mph for the Maine <br>Turnpike. As the officer approached appellant's vehicle, he <br>observed a commotion among the occupants. There were three young <br>males in the back seat, an adult female in front next to the <br>driver, and an adult male driver. The officer asked the driver, <br>who turned out to be appellant, to step outside the vehicle and to <br>produce his driver's license, vehicle registration and insurance <br>documentation. While this was taking place, the officer noticed <br>that appellant's shirt was untucked, whereupon he asked appellant <br>to lift his shirt so that his waistband was exposed. Nothing <br>unusual was revealed. <br> The officer then conducted a patdown search of appellant, <br>during the course of which he discovered a jackknife and a syringe <br>and needle in his pants pockets. Appellant was placed under arrest <br>for possession of illegal drug paraphernalia. <br> After appellant was arrested, the officer proceeded to <br>search the other occupants of the car. The sum of $5,000 cash was <br>discovered in the purse of the female passenger, who was later <br>identified as appellant's then-girlfriend Ericka Thibodeau, and a <br>9-mm pistol was recovered from her person. Thereafter, the officer <br>found an ammunition magazine for the pistol on the floor of the car <br>between the front and back seats. An additional magazine and three <br>loose rounds were later found on the floor of the officer's car, <br>directly behind where appellant had been placed after his arrest. <br>Two rounds of 9-mm ammunition were also found tucked between the <br>cushions of the seat that appellant had occupied. <br> B. Was the pat-down of appellant a permissible Terry stop and frisk? <br> <br> Appellant questions the validity of his frisk by the <br>Maine officer as being beyond the scope permitted by Terry v. Ohio, <br>392 U.S. 1 (1968), and seeks the suppression of all evidence <br>discovered, claiming it is "fruit of the poisonous tree." Wong Sunv. United States, 371 U.S. 471, 485-86 (1963). In this respect it <br>is important to keep in mind that the district court's findings of <br>fact are reviewable only for clear error, although its legal <br>conclusions receive de novo treatment. See Ornelas v. United <br>States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996). <br> Because appellant concedes that Terry permits the police <br>to stop a person to investigate upon a reasonable suspicion that a <br>crime has been committed, and because appellant does not contest <br>the fact that he was violating the speed limit when he was stopped, <br>our inquiry is narrow in scope. Was appellant's search after the <br>legitimate stop reasonable under the circumstances? <br> We first look to whether the officer acted properly in <br>ordering appellant to step outside his vehicle upon being stopped. <br>The district court in effect concluded that the officer's <br>suspicions were justifiably heightened, not only by the abrupt <br>manner in which appellant's vehicle pulled over and came to a stop, <br>but "by the exaggerated level of movement of the occupants of the <br>car as it came to a stop, particularly those of the passenger in <br>the right front seat." Given these findings, which are fully <br>supported by the record, the officer's request that appellant step <br>outside his automobile was justified. See Maryland v. Wilson, 519 <br>U.S. 408, __, 117 S. Ct. 882, 885 (1997) (noting that, once vehicle <br>lawfully stopped for traffic violation, constitutionally <br>permissible for officer to order driver to get out of vehicle). <br> The next and final step of this inquiry is whether <br>appellant's frisk, which provided the immediate cause for his <br>arrest and which uncovered some of the incriminating evidence for <br>which he was charged and convicted, was appropriate under Terry. <br> This step need not detain us long. Analyzing the <br>propriety of a frisk involves a two-part inquiry, in which no <br>single factor is controlling: "first . . . [one must determine] <br>whether the officer's action was justified at its inception, and <br>second, whether the action taken was reasonably related in scope to <br>the circumstances which justified the interference in the first <br>place." United States v. Walker, 924 F.2d 1, 3 (1st Cir. 1991) <br>(quoting United States v. Stanley, 915 F.2d 54, 55 (1st Cir. <br>1990)). The court must consider the circumstances as a whole, and <br>must balance the nature of the intrusion with the governmental <br>interests that are served. United States v. Hensley, 469 U.S. 221, <br>228 (1985). <br> The circumstances of this stop are such that the officer <br>would have been "foolhardy" not to have frisked appellant for <br>weapons. See Walker, 924 F.2d at 4. In particular, the time of <br>day and location of the incident, the excessive speed at which the <br>vehicle was driven, the manner in which it came to a stop, and the <br>unexplained commotion among its occupants who outnumbered the <br>police officer five to one, was sufficient cause to conduct the <br>initial limited patdown of appellant's front pants pockets, in <br>which contraband was in fact discovered. What followed has been <br>fully recounted and need not be repeated, but was certainly not <br>"poisoned fruit." <br> "The Fourth Amendment by its terms prohibits <br>'unreasonable' searches and seizures." New York v. Class, 475 U.S. <br>106, 116 (1986). The stop and ensuing search were reasonable under <br>the circumstances and thus the ruling of the district court denying <br>suppression of the evidence is affirmed. <br>II. The Sufficiency of the Evidence <br> In considering a motion for judgment of acquittal, both <br>the trial and reviewing courts must evaluate the evidence and such <br>reasonable inferences as arise therefrom in the light most <br>favorable to the government. United States v. Loder, 23 F. 3d 586, <br>589 (1st Cir. 1994). <br> Appellant's arguments go principally to the credibility <br>of various government witnesses, and are thus in large measure <br>addressed to the wrong forum. See United States v. Meader, 118 <br>F.3d 876, 881 (1st Cir. 1997) (finding credibility assessments to <br>be uniquely the domain of the jury). <br> A. 18 U.S.C. 924(c)(1) <br> Count VII of the indictment charges appellant with using <br>and carrying a firearm in violation of 18 U.S.C. 924(c)(1). Since <br>this relates to the use or carrying of a firearm during and in <br>relation to the drug crime alleged in Count I, we must look first <br>to the government's proof in that respect. <br> In Count I of the indictment, appellant was charged with <br>engaging in a conspiracy to distribute cocaine base in violation of <br>21 U.S.C. 841(a)(1) and 846. At least 8 witnesses testified <br>that throughout the summer of 1996, they and others purchased crack <br>cocaine from appellant. Each of these witnesses corroborated the <br>other seven, and their testimony was also confirmed by the <br>introduction of evidence seized from appellant's premises, which <br>included cash, drugs, and drug paraphernalia. Viewing this <br>evidence and all reasonable inferences that may be drawn therefrom <br>in the light most favorable to the government, we find that there <br>was enough evidence to allow a reasonable jury to convict on Count <br>I. <br> Turning to the proof regarding Count VII, the evidence is <br>equally overwhelming that appellant carried the 9-mm pistol that <br>was introduced into evidence during the various phases of his drug <br>deals, including during purchases, transportation, and, most bone- <br>chillingly described by several witnesses, during drug-debt- <br>collection episodes. Count VII was well proven. <br> B. 18 U.S.C. 922(g)(1) and 924(e)(1) <br> The above evidence is also relevant to the Count VIII <br>charge which alleges his condition as a felon in possession with <br>respect to the 9-mm pistol. There is no question that appellant <br>was a three-time felon, and that he was in possession of a firearm. <br>Thus, Count VIII was established. <br> This evidence is equally applicable to Count IX, with the <br>slight variation that appellant is charged there with knowing <br>possession of the seven rounds of 9-mm ammunition discovered in <br>various places where he had passed through during his travails. <br>Appellant's disavowals as to this evidence were appropriately <br>brought to the attention of the jurors, who were entitled to give <br>his contention the weight that they considered it deserved. We see <br>no reason to disturb their conclusion. <br> C. The sawed-off shotgun <br> Count X is again a variation of the prior felon-in- <br>possession theme, this one involving a sawed-off shotgun. <br>Witnesses testified that the shotgun was purchased and paid for at <br>appellant's behest, and that thereafter he took possession of this <br>weapon. Appellant was a felon and he was in possession of a <br>firearm -- end of matter. <br> In Count XI, appellant was charged with possessing an <br>unregistered sawed-off shotgun in violation of 26 U.S.C. 5841, <br>5861, and 5871. A witness testified to helping appellant to saw <br>the barrel off the shotgun referred to in Count X, which in fact he <br>thereafter used to terrorize this same witness. This weapon was <br>less than 26 "overall, with a barrel shorter than 18," and was not <br>registered in appellant's name in the National Firearms <br>Registration and Transfer Record. Nothing further need be proven <br>to establish the violations charged in Count XI of the indictment. <br> Lastly, Count XII which charges appellant, an illegal <br>drug user, with possession of the shotgun in contravention to 18 <br>U.S.C. 922(g)(3) and 924(e)(1), was also clearly established <br>beyond a reasonable doubt. <br>III. Alleged juror misconduct and denial of mistrial motion <br> "When a non-frivolous suggestion is made that a jury may <br>be biased or tainted by some incident, the district court must <br>undertake an adequate inquiry to determine whether the alleged <br>incident occurred and if so, whether it was prejudicial." UnitedStates v. Barone, 114 F.3d 1284, 1306 (1st Cir. 1997) (quoting <br>United States v. Ortiz-Arrigoita, 996 F.2d 436, 442 (1st Cir. <br>1993)). The trial judge is "vested with the discretion to fashion <br>an appropriate and responsible procedure to determine whether <br>misconduct actually occurred and whether it was prejudicial." <br>Ortiz-Arrigoita, 996 F.2d at 442. A district court has wide <br>latitude in responding to such a claim, Meader, 118 F.3d at 880, <br>and thus, the course of inquiry that is selected is reviewable only <br>for patent abuse of discretion. United States v. Boylan, 898 F.2d <br>230, 258 (1st Cir. 1990). <br> During a recess in the trial of this case, court <br>personnel overheard three jurors discussing some of the evidence <br>against appellant, conduct which was contrary to instructions <br>previously given by the district judge to the jury. This <br>information was made known to the trial judge, who promptly <br>communicated the incident to trial counsel, requesting their views <br>as to how to proceed. Appellant was of the view that only a <br>mistrial was sufficient to correct the situation. The trial court <br>opined that further inquiry was required before such a drastic <br>measure would be taken, and decided instead to summarily excuse the <br>three jurors involved, preventing any further contact between them <br>and the other jurors, and investigate whether any of the remaining <br>jurors had been contaminated. <br> In the presence of counsel, the trial judge separately <br>examined two of the remaining jurors who were physically in the <br>vicinity of the offending jurors and might have overheard their <br>conversation. Upon being questioned, they denied any knowledge of <br>the incident. Thereafter, the court summoned the remaining jurors <br>as a group, admonished them to be candid, and explained to them <br>what had happened regarding the excused jurors. He then asked the <br>assembled jurors whether any of them had overheard the three jurors <br>talking, whether they had heard any talk about the shotgun which <br>was the subject of the transgressing jurors' conversation, and <br>finally, whether any of them had made up their minds about the <br>case. No juror responded in the affirmative to any of these <br>questions. Thereafter, the court denied appellant's motion for <br>mistrial and properly corrected any possible damage to the <br>integrity of the trial. <br> Given the circumstances we have described, we are of the <br>view that the trial judge acted well within his discretion in <br>denying a mistrial. <br>IV. Alleged Prosecutorial Misconduct During Closing Argument <br> Appellant did not give up his quest for a new trial. <br>During the course of closing argument, counsel for appellant <br>likened the government's witnesses to individuals who were trying <br>to outrun the appellant while all were running from the federal <br>government, which was portrayed as a voracious bear. In his <br>rebuttal, government counsel responded to this allegory with his <br>own version of what was going on, stating that "the man that [was] <br>trying to outrun the bear is [appellant]" in contrast to other <br>persons, which he named individually, who had "been caught by the <br>bear and [had] accepted responsibility." The government went on to <br>ask rhetorically, "Who is the man that is running?" <br> Shortly after these statements were made, the government <br>ended its rebuttal and the trial judge called a recess prior to <br>charging the jury. At that point, defense counsel challenged the <br>propriety of these remarks as disparaging appellant's exercise of <br>his constitutional right to a trial, and requested that a mistrial <br>be declared. The district court denied appellant's petition, <br>ruling that the objection was tardy in that it is "incumbent upon <br>counsel when there is improper argument immediately to cut it off <br>and to give the judge a chance to address it right there and that <br>was not done. . . ." In view of this ruling, appellant's counsel <br>stated that, "[i]n the alternative [he] would ask for some sort of <br>instruction . . . that says, I think you may have instructed this <br>already, a person accused of a crime has a constitutional right to <br>a trial." The trial judge responded that he would "give that <br>instruction again as part of the proposed speaking draft of the <br>instructions," to which defense counsel once more stated: <br> COUNSEL: That would be what I would request <br> simply to reiterate that a defendant has a <br> constitutional right to a trial. Could there <br> be something like no adverse inference can be <br> drawn from the fact that a defendant exercised <br> his constitutional right? <br> <br> THE COURT: Yes, I'll say something. <br> <br> COUNSEL: Do you want me to draft it or simply <br> rely on the Court? <br> <br> THE COURT: I will draft it. Listen carefully. <br> If you don't like it, you will have a chance <br> to object. <br> <br>The trial judge, at the appropriate time, proceeded to give the <br>appropriate instructions, at which point he allowed all counsel the <br>opportunity to object to the instructions given or to request <br>further instructions. No such thing happened. See United Statesv. Mendoza-Acevedo, 950 F.2d 1, 4 (1st Cir. 1991) (noting that <br>failure to renew objections after charge constitutes waiver of any <br>claim of error). <br> There should be little doubt that appellant's claim of <br>error is not well taken. To begin with, the trial judge was <br>correct in ruling that a timely objection was not made. In this <br>day and age we need not elaborate at length as to the consequences <br>of such a failure. Suffice it to say that it constitutes a waiver <br>of rights unless the error committed and not objected to is of such <br>a magnitude as to have "so poisoned the well that the trial's <br>outcome was likely affected." United States v. Meja-Lozano, 829 <br>F.2d 268, 274 (1st Cir. 1987). Of course, no such thing has taken <br>place here. The weight and quantity of the evidence against <br>appellant was nothing short of overwhelming, which places any <br>hypothetical error committed in this respect in the "harmless" <br>category. United States v. Taylor, 54 F.3d 967, 977 (1st Cir. <br>1995). <br> To this we should add that the district court found, and <br>the record supports, that the allegedly inappropriate comments by <br>government counsel were not deliberate. We have uncovered nothing <br>that would lead us to conclude that this was anything but an <br>isolated slip. Id. Lastly, the aforementioned exchange between <br>appellant's counsel and the district judge leave us with the clear <br>conviction that the proposed solution not only was accepted, but <br>effectively protected appellant's rights. Id. <br> Any error that may have occurred was harmless beyond a <br>reasonable doubt. See United States v. Hastings, 461 U.S. 499, 508 <br>(1983) ("harmless error rule governs even constitutional violations <br>under some circumstances"). <br>V. Alleged Sentencing Errors <br> Under Guideline section 4B1.4, "[t]he offense level for <br>an armed career criminal is the greatest of" three options. The <br>first is the offense level that results from ordinary Guidelines <br>computations. The second option is "the offense level from 4B1.1 <br>[Career Offender], if applicable . . . ." See U.S.S.G. 4(b)(2). <br>The third alternative sets the offense level at 34 if the defendant <br>used a firearm in the commission of a drug or violent crime, or <br>possessed a sawed-off shotgun. See U.S.S.G. 4B1.4(b)(3)(A). <br> Appellant claims that the trial court committed five <br>errors in imposing the sentence from which he appeals. Four of <br>these challenges are ultimately mooted by our affirmance of his <br>Armed Career Criminal status. The four include attacks on the <br>enhancements under U.S.S.G. 2D1.1(b)(1), 2K2.1(b)(5), and 3A1.3 <br>based on the quantity of the drugs. In addition, appellant <br>challenges his Armed Career Criminal status on the ground that one <br>of the predicate offenses was a conviction for an attempted <br>criminal drug sale and, as an attempt, does not meet the definition <br>of a "controlled substance offense" under U.S.S.G. 4B1.2. <br>Application Note 1, however, specifically includes in "controlled <br>substance offense" the offense of attempting to commit such <br>offense. <br> Because appellant qualified as an Armed Career Criminal <br>under 4B1.1, his offense level was geared to the statutory <br>maximum for the offense of the conviction. In the present case, <br>once appellant's enhancing information was filed as required by 21 <br>U.S.C. 851, the maximum sentence for his offense became life <br>imprisonment, which has a minimum offense level of 37. The <br>district court having correctly sentenced appellant based upon an <br>adjusted total offense level of 37, we need not consider <br>appellant's other challenges of his sentence. <br>VI. Appellant's Pro Se Arguments <br> Appellant contends that the district court erred in <br>allowing the testimony of Susan Cronin, whom the government failed <br>to include on its initial witness list. Prior to trial, the court <br>attributed the government's omission to "inadvertence," but agreed <br>to allow Cronin to testify as long as none of the jurors knew or <br>had heard of her. Appellant's counsel did not object to this <br>approach either when it was proposed, or at the time the trial <br>judge asked the jurors whether they knew Cronin. We note that <br>"[e]ven when the government has produced a witness list . . . in <br>advance, when a witness . . . not previously listed is offered, the <br>decision to admit the testimony . . . is within the discretion of <br>the trial judge." See United States v. Reis, 788 F.2d 54, 58 (1st <br>Cir. 1986). <br> It was well within the district court judge's discretion <br>to allow Cronin to testify. Nothing in the record suggests that <br>appellant was prejudiced by the government's failure to include <br>Cronin's name on the initial witness list. Since no member of the <br>jury had heard of Cronin prior to trial, the integrity of the jury <br>remained intact. Furthermore, appellant had sufficient time to <br>prepare for Cronin's testimony because she did not testify <br>immediately after being offered as a potential witness, but rather, <br>later in the trial, as the government's ninth witness. <br> Appellant also objects to the substance of Cronin's <br>testimony, which helped authenticate photographs of bruises <br>inflicted on Ericka Thibodeau by appellant on September 4, 1996. <br>Appellant avers that, under Fed. R. Evid. 403, the prejudicial <br>impact of the photographs far outweighed their probative value. On <br>appeal, we afford a district court's Rule 403 balancing substantial <br>discretion. See United States v. Lowe, 145 F.3d 45, 51 (1st Cir. <br>1998). The district court allowed the photographs into evidence as <br>probative of Thibodeau's credibility. The trial judge, after due <br>consideration of the photographs' potential prejudicial impact, <br>determined that while the photographs were "unpleasant," they were <br>not "gruesome." Accordingly, the trial judge concluded "[t]here is <br>nothing prejudicial about the jury being able to see by way of <br>corroboration of [Thibodeau's] testimony what it is that <br>[appellant] did to her." Finding no abuse of discretion, we <br>decline to disturb the district court's ruling on the admissibility <br>of the photographic evidence. <br> Appellant contests the admission of Thibodeau's <br>statements to Cronin as excited utterances under Fed. R. Evid. 803. <br>Rule 803(2) allows the admission of hearsay, even though the <br>declarant is available as a witness, if the statement is one <br>"relating to a startling event or condition made while the <br>declarant was under the stress of excitement caused by the event or <br>condition." Fed. R. Evid. 803(2). The statements at issue were <br>made on September 4th at approximately 8:00 a.m., shortly after <br>Thibodeau arrived at the battered women's shelter where Cronin was <br>employed. The evidence suggests that while the September 4th <br>beating lasted until 4:00 a.m., Thibodeau was unable to escape the <br>apartment where the assault occurred until some period after that <br>time. It is likely that Thibodeau continued to suffer from the <br>trauma of the beating when she fled to the women's shelter, and <br>thus, the district court did not abuse its discretion in allowing <br>her statements into evidence as excited utterances. <br> Finally, appellant challenges statements made by the <br>government in its opening statement to the jury. Since appellant <br>failed to object to any of these challenged statements on the <br>record, we engage in plain error review. See United States v. <br>Sullivan, 85 F.3d 743, 748 (1st Cir. 1996). Under the plain error <br>standard of review, "appellant bears the burden of persuasion to <br>establish that there was an error, that the error was clear or <br>obvious, and that the error affected substantial rights." United <br>States v. Shifman, 124 F.3d 31, 38-39 (1st Cir. 1997) (internal <br>quotations and citation omitted). In its opening statement, the <br>government told the jury that a weapon was found in the police <br>cruiser where appellant had been detained when, in fact, only <br>ammunition had been discovered. The prosecution also stated that <br>appellant admitted to owning the ammunition found in the cruiser to <br>a police officer, but the evidence shows that appellant did not <br>make such a statement to the officer. Lastly, the government <br>stated that a shotgun and cocaine had been found in certain parts <br>of an apartment although evidence failed to link the weapon and <br>drugs to those exact locations. <br> Appellant does not make any particularized allegations of <br>bad faith on the part of the government in making its opening <br>statement. Moreover, the evidence presented at trial would have <br>corrected any jury misperception arising from the government's <br>opening statement. The arresting officer testified that he had <br>discovered only ammunition, not a weapon, in his cruiser. In <br>addition, the evidence showed that appellant told Thibodeau he had <br>dropped his ammunition in the cruiser. Finally, the evidence <br>connected appellant to the shotgun and drugs found in the <br>apartment, rendering the exact location of the contraband <br>irrelevant. It is important to note that, while a curative <br>instruction was neither requested of nor issued by the district <br>court, appellant's counsel, in his opening statement, which <br>immediately followed the government's opening, stated, "I would <br>like to make it clear these opening statements are not evidence." <br>Under these circumstance, we find no plain error. Cf. United <br>States v. Ferrera, 746 F.2d 908, 910-11 (1st Cir. 1984) (no plain <br>error where very little prejudice resulted from improper remark in <br>government's opening statement). <br> The rulings of the district court are affirmed in all <br>respects.</pre>
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