DocketNumber： 96-1360
Filed Date： 4/8/1997
Status： Precedential
Modified Date： 9/21/2015
United States Court of Appeals
For the First Circuit
____________________
No. 96-1360
UNITED STATES,
Appellee,
v.
PATRICK J. MEADE,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Cyr, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Paul F. Markham, by Appointment of the Court, for appellant. _______________
Kimberly S. Budd, Assistant United States Attorney, with whom ________________
Donald K. Stern, United States Attorney, was on brief for appellee. _______________
____________________
April 8, 1997
____________________
STAHL, Circuit Judge. In December 1993, federal STAHL, Circuit Judge. _____________
agents arrested defendant-appellant Patrick J. Meade in
Massachusetts for his suspected involvement in the attempted
robbery of an armored vehicle. A federal grand jury in Rhode
Island returned an indictment charging him with various
offenses related to the attempted robbery. Before trial, the
federal district court in Rhode Island dismissed the count
that charged Meade with being a felon in possession of a
firearm in violation of 18 U.S.C. 922(g)(1). After a jury
trial, Meade was acquitted of all remaining counts.
Subsequently, the government prosecuted the felon-in-
possession count in Massachusetts federal district court, and
in December 1995, a federal jury in that state found Meade
guilty of that offense. The court then imposed a seventy-
month imprisonment term, taking into account Meade's conduct
in the attempted robbery.
On appeal, Meade raises four distinct claims: (1)
federal agents lacked probable cause to arrest him; (2) the
instant prosecution violated the Speedy Trial Act because of
his earlier arrest, indictment on the same charge, and
subsequent dismissal of the charge; (3) the district court
erred in failing to instruct the jury on his theory of the
case; and (4) the district court erred when it enhanced his
sentence based on conduct underlying charges of which he had
been acquitted. Finding none of these arguments persuasive,
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we affirm. We provide the pertinent background facts as
necessary to the discussion of each contention.
I. I. __
Probable Cause Probable Cause ______________
After a three-day evidentiary hearing, the district
court found that, at the time of Meade's arrest, agents of
the Federal Bureau of Investigation ("FBI") had information
from which they could reasonably believe that he and two
others were about to rob an armored courier van. Based on
this finding, the court determined that Meade's warrantless
arrest did not violate his Fourth Amendment rights and denied
his pre-trial motion to suppress a firearm seized during a
search incident to his arrest. On appeal, Meade renews his
contention that agents lacked probable cause to arrest him.
A. Standard of Review ______________________
We review the district court's legal conclusions on
a motion to suppress de novo and examine its factual findings __ ____
for clear error. United States v. Young, 105 F.3d 1, 5 (1st _____________ _____
Cir. 1997). "[T]he decision whether these historical facts,
viewed from the standpoint of an objectively reasonable
police officer, amount to reasonable suspicion or to probable
cause" presents a mixed question of law and fact which is
subject to plenary review. Ornelas v. United States, 116 S. _______ _____________
Ct. 1657, 1661-62 (1996).
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B. Probable Cause __________________
A warrantless arrest requires probable cause, the
existence of which must be determined in light of the
information that law enforcement officials possessed at the
time of the arrest. See United States v. Diallo, 29 F.3d 23, ___ _____________ ______
25 (1st Cir. 1994). "Probable cause exists when police
officers, relying on reasonably trustworthy facts and
circumstances, have information upon which a reasonably
prudent person would believe the suspect had committed or was
committing a crime." Young, 105 F.3d at 6. To establish _____
probable cause, the government "need not present the quantum
of proof necessary to convict." United States v. Uricoechea- _____________ ___________
Casallas, 946 F.2d 162, 165 (1st Cir. 1991). ________
C. Discussion ______________
The operation culminating in Meade's arrest
involved numerous FBI agents. Several of these agents
testified to their own observations of the events leading up
to the arrest as well as to other agents' observations
communicated to them via FBI radio. Based on the testimony
and evidence presented, Meade contends that the FBI agent who
ordered his arrest, Agent John Newton, lacked information
sufficient to believe that Meade was committing a crime. The
government disputes this claim and, invoking the proposition
that "probable cause is determined in light of the collective
knowledge of the law enforcement officers involved in an
-4- 4
investigation," further relies upon certain facts known to
other agents, but not to Agent Newton. Because of the
relative complexity of the law-enforcement operation
preceding Meade's arrest, we begin with a brief discussion of
principles that pertain when the government seeks to
establish probable cause on the basis of knowledge possessed
by more than one participant.
1. Fellow-Officer/Collective-Knowledge Rule ____________________________________________
Under the "fellow-officer" rule, law enforcement
officials cooperating in an investigation are entitled to
rely upon each other's knowledge of facts when forming the
conclusion that a suspect has committed or is committing a
crime. See United States v. Ventresca, 380 U.S. 102, 111 ___ _____________ _________
(1965) ("Observations of fellow officers of the Government
engaged in a common investigation are plainly a reliable
basis for a warrant applied for by one of their number.");
see generally 2 Wayne R. LaFave, Search and Seizure 3.5(a), ___ _________ __________________
at 250-52 (1996).1 Thus, when a law enforcement officer with
information amounting to probable cause directs an officer
who lacks the knowledge to make the arrest, we "impute" to
the arresting officer the directing officer's knowledge. See ___
Burns v. Loranger, 907 F.2d 233, 236 n.7 (1st Cir. 1990); _____ ________
____________________
1. See also United States v. Asselin, 775 F.2d 445, 446 (1st ___ ____ _____________ _______
Cir. 1985) (rejecting "totem pole hearsay" contention where
special agent relied upon local police officer's
communication of information obtained from reliable
informant).
-5- 5
Karr v. Smith, 774 F.2d 1029, 1032 (10th Cir. 1985); Mendoza ____ _____ _______
v. City of Rome, 872 F. Supp. 1110, 1116 (N.D.N.Y. 1994); _____________
LaFave, supra 3.5(b), at 255-58; e.g., United States v. _____ ____ ______________
Paradis, 802 F.2d 553, 556-57 (1st Cir. 1986) (upholding _______
arrest ordered by superior although the arresting officer may
have lacked probable cause).2
The fellow officer rule underlies the well-worn
maxim that "the collective knowledge and information of all
the officers involved establishes probable cause for the
arrest." United States v. Paradis, 802 F.2d 553, 557 (1st _____________ _______
Cir. 1986); see United States v. Hinojos, 107 F.3d 765, No. ___ ______________ _______
96-5127, 1997 WL 66160, at *2-3 (10th Cir. Feb. 18, 1997);
Karr, 774 F.2d at 1031; United States v. One 1975 Pontiac ____ _____________ _________________
Lemans, 621 F.2d 444, 449 (1st Cir. 1980). The "collective ______
knowledge" or "pooled knowledge" principle has been used to
validate arrests in two ways: (1) by tracing the arresting
officer's action back to an individual in a law enforcement __________
agency who possessed information sufficient to establish
probable cause, and (2) by finding that the directing agency ______
____________________
2. If it turns out, however, that the directing officer
lacked probable cause to order the arrest, then the arrest
itself is unlawful regardless of the arresting officer's
otherwise proper reliance. See Whiteley v. Warden, 401 U.S. ___ ________ ______
560, 568 (1972) (explaining that although arresting officers
are "entitled to assume" that fellow officers seeking help to
execute arrest warrant had probable cause, arrest is unlawful
where warrant did not issue upon probable cause); Mendoza, _______
872 F. Supp. at 1116.
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as a whole possessed the necessary facts. See LaFave, supra, ___ _____
3.5(b), at 259-60 (noting cases).
A sensible argument has been made that looking to
the agency's knowledge as a whole is unwise because it may
"encourage the dissemination of arrest orders based upon
nothing more than the hope that the unevaluated bits and
pieces in the hands of several different officers may turn
out to add up to probable cause." LaFave, supra 3.5(b), at _____
260. In the same vein, the collective-knowledge corollary of
the fellow officer rule would seem to require, or at least
presuppose, the flow of information from the officers with
knowledge of facts tending to establish probable cause to
those lacking that knowledge (or, at least, to the directing
or arresting officer). See LaFave, supra 3.5(b), at 260-61 ___ _____
n.53, 3.5(c), at 266 n.72 (citing cases).3
We have not directly addressed the question whether
the collective-knowledge rule is limited to situations in
which the knowledge vests in a pertinent individual -- such
as the directing or arresting officer -- or whether the rule
broadly encompasses situations in which the officers or
agency as a whole possess the requisite information. In this
____________________
3. See e.g., State v. Cooley, 457 A.2d 352, 355 (Del. 1983) ___ ____ _____ ______
("To say in the abstract that probable cause is to be
evaluated on the basis of the collective information of the
police ignores the underlying assumption -- and factual
reality -- that there is some communication between those
officers, who do know facts amounting to probable cause, and
those who do not.").
-7- 7
case, the government attempts to invoke the broader
application. Here, however, we need consider neither the
possible permutations of these principles nor choose between
them4 because we find that both the directing officer and the
arresting officer individually possessed the requisite
knowledge, albeit from different facts, to establish probable
cause.
2. Suppression Hearing Evidence ________________________________
In light of this discussion, we review in some
detail the suppression hearing evidence and the court's
factual findings regarding the various FBI agents'
observations and communications throughout the operation that
resulted in Meade's arrest. We pay particular attention to
the observations and knowledge of Agent Newton, the directing
officer, and Agent Jay Fallon, the arresting officer, and, in
doing so, we view the evidence in the light most favorable to
____________________
4. One approach is to presume communication, absent the
defendant's rebuttal. See generally United States v. ___ _________ ______________
Shareef, 100 F.3d 1491, 1503-05 (10th Cir. 1996) (discussing _______
presumption of communication underlying imputation of
knowledge among officers working together, but declining to
impute to one officer another's knowledge of defendant's
physical characteristics in light of trial judge's specific
finding that such information had not been shared) (also
opining that even absent evidence of communication, it may be
appropriate to consider, under "single organism" theory,
"collective knowledge" of officers acting collectively to
determine reasonableness of their behavior); see also ___ ____
Illinois v. Andreas, 463 U.S. 765, 771-72 n.5 (1983) ________ _______
(explaining that the knowledge of one official is "presumed
shared" by others cooperating in an investigation).
-8- 8
the court's ruling. See United States v. Maguire, 918 F.2d ___ _____________ _______
254, 257 (1st Cir. 1990).
Several days before December 23, 1993, an informant
advised FBI special agent Frank Brosnan, the case agent in
charge of this matter, that two men, Lawrence "Mitch" Lanoue
and Albert Cole, assisted by at least one additional
unidentified person, would attempt to rob an armored courier
vehicle. The informant reported that the robbery would occur
in a mall or congested area and that the suspects would use a
particular vehicle in the operation: namely, a stolen gray
1985 Oldsmobile (the "gray Olds" or "Olds"). In fact, the
gray Olds had already been located and law enforcement
personnel had surreptitiously planted an electronic tracking
device in it.
In the early morning hours of December 23, 1993, at
the state police barracks in Rhode Island, case agent Brosnan
briefed a twenty-member Special Weapons and Tactics ("SWAT")
team and its commander, Agent Newton, regarding what was
known about the purported heist. FBI surveillance teams were
deployed in the air and on the ground to monitor the
movements of the gray Olds, which was located on a farm in
Pascoag, Rhode Island at that time. The surveillance team
also kept watch over a house in nearby Harrisville, Rhode
Island, where they suspected Lanoue to be staying. The FBI
-9- 9
SWAT team stood by, ready to respond if the surveillance team
reported suspicious movements connected to the Olds.
At about 9:50 a.m., a surveillance pilot noticed a
pickup truck pull out of the Harrisville driveway, drive to
the nearby Pascoag farm, and park near the gray Olds. The
pilot communicated his observations over FBI radio. He
advised that he observed the truck's driver and several other
people move between the two vehicles, apparently placing
items into the Olds' trunk. Around 10:00 a.m., the pickup
truck and the gray Olds exited the farm and drove through
Woonsocket to a shopping mall in Cumberland, Rhode Island.
Ground surveillance units, followed by Agent Newton and other
SWAT team members, began to trail the vehicles with
assistance from the air surveillance unit. During the
operation, Agent Newton monitored two FBI radio frequencies,
one dedicated to the surveillance units, which transmitted
both air and ground communications, and the other to the SWAT
units.
The pickup truck's driver left the truck in the
Cumberland mall parking lot and entered the gray Olds, which
then proceeded over the Rhode Island state line toward a
shopping mall (the "Ames mall") in Bellingham,
Massachusetts.5 At approximately 10:40 a.m., after stopping
____________________
5. The surveillance pilots were able to observe the pickup
truck throughout the morning and noted that it did not move
from its spot in the Cumberland mall.
-10- 10
briefly outside the entrance of the Ames mall, the gray Olds
travelled down a street leading to the back of the Ames
department store. The surveillance pilot warned the ground
teams not to enter the street, which was a dead-end. At the
rear of the Ames store, the Olds' occupants rendezvoused with
a person (or persons) in a parked brown automobile. Over the
next ten minutes, several individuals moved between the two
vehicles.
Around that time, approximately 10:50 a.m., Agent
Newton and his SWAT team arrived at the Ames mall. At Agent
Newton's direction, the SWAT team members placed their
vehicles in various locations in the parking lot. Agent
Newton had just heard over the radio about the gray Olds and
brown vehicle parked together behind the Ames store. He also
heard the surveillance pilot state that an individual who
exited the brown vehicle had entered the gray Olds, though
the pilot did not provide a description of this individual.
Shortly thereafter, the surveillance pilot radioed to the
ground crew that the brown vehicle was leaving the area
behind the Ames store, and asked if he should follow it. The
pilot was directed to stay with the gray Olds. Although
Agent Newton had been monitoring the surveillance frequency
along with the SWAT frequency, he was unaware of the
communication that the brown car had departed.
-11- 11
Shortly thereafter, the gray Olds left the mall
area, made several turns through a residential area,
returned, and stopped near the entrance to the Ames
department store. The surveillance pilot observed a heavyset
man wearing dark clothing exit the Olds and walk toward the
store. The pilot noticed what appeared to be a red bag over
the man's shoulder. Agent Newton heard the pilot's
description of the man over the radio and also received
information that the heavyset individual was lingering in the
area in front of the Ames store. At approximately 11:00
a.m., Agent Newton directed another agent to look for the
heavyset man. The agent entered and searched the Ames store,
but could not find him. A short time later, a different man,
wearing a dark knit cap, entered the Olds and remained in it
for approximately fifteen minutes. That individual then left
the vehicle, entered the Ames store, and returned minutes
later.
Agent Newton subsequently received a communication
that around 11:25 a.m., the heavyset man returned to the gray
Olds and joined the other occupants.6 The car then drove
around the Ames mall parking lot. At one point, it passed
special agent Jay Fallon, a SWAT team member, who was seated
____________________
6. At this point, another SWAT team member saw the heavyset
man enter the gray Olds. This agent identified what
previously had been described as a "red bag" over the man's
shoulder as a red-checked hood attached to his coat.
-12- 12
in a vehicle located just inside the entrance to the Ames
mall. Agent Fallon, who would ultimately assist in the
actual arrest of Meade, had a direct view of the three
passengers in the vehicle, and he recognized two of them,
Lanoue and Cole, from previously furnished photographs. The
gray Olds then left the parking area.
Around 11:35 a.m. or 11:40 a.m., Agent Newton
observed an unmarked armored van approach and park directly
in front of the Ames store. A uniformed courier immediately
exited the van, entered the store and walked toward the
store's main business office. Shortly thereafter, Agent
Newton received a communication that the gray Olds had
reentered the Ames mall parking area and was heading toward
the Ames store. About that time, Agent Fallon heard the same
or a similar transmission, and that an individual who had
been seen in the gray Olds was now in a brown Pontiac that
had entered the parking area.7 Agent Fallon then personally
observed the gray Olds and recognized its two passengers,
Lanoue and Cole. Agent Newton observed the gray Olds pull
into a parking space, and noticed only two people inside.
At approximately 11:45 a.m., Agent Newton
observed a passenger exit the gray Olds, and recognized him
from previously reviewed photographs as Lanoue. Lanoue
____________________
7. Agent Fallon had not heard the transmission concerning
the earlier observation of the brown car behind the Ames
store.
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walked toward the armored van, looking over his shoulder
toward the area of the Ames store in which the courier had
entered. At that point, Agent Newton, via radio, advised
that he along with other agents would arrest Lanoue, directed
other agents in his vehicle to arrest the remaining person in
the gray Olds, and ordered the other SWAT units to locate the
brown car and arrest the third man.
Upon hearing the arrest order, Agent Fallon drove
his vehicle a short distance through the parking area and
came upon the third individual, who was exiting a brown
Pontiac. With other agents already on the scene, Agent
Fallon ordered the man to the ground, advised him he was
being arrested by the FBI, handcuffed him and searched him.
During the search, Agent Fallon found a fully loaded five-
shot .38 caliber pistol in the suspect's coat pocket. The
person subsequently was identified as Patrick Meade.
3. Analysis ____________
Meade argues that Agent Newton did not have
sufficient information to order the agents to locate and
arrest the occupant of the brown vehicle. He contends that,
even assuming the existence of probable cause to arrest
Lanoue and Cole, the agents lacked probable cause to arrest
him simply because he happened to be sitting in a brown
vehicle. We disagree.
-14- 14
Preliminarily, we leave undisturbed the district
court's conclusion that the agents, through their
observations, confirmed the informant's tip regarding
specific facts surrounding the suspected attempted robbery,
and that this confirmation legitimately supported a finding
of probable cause.8 The tip specifically identified two of
the attempted-robbery participants, indicated the existence
of at least one additional unidentified participant, and
specified one of the vehicles to be used. Many of the
activities that occurred throughout the morning corroborated
the informant's story: the use of several vehicles, including
the nearby positioning of the pickup truck and the meeting
with the brown vehicle; the suspects' apparent casing of and
waiting at the Ames mall; the suspects' return to the mall
after the armored van's arrival; and Lanoue's approach toward
the van.
With regard to Meade's specific appellate
challenges, we find that Agent Newton had information
sufficient to order the agents to locate the brown car and
arrest the third man (Meade). We acknowledge that Agent
Newton admitted that he did not recall any communication
about the brown vehicle entering the parking lot at that
____________________
8. See Draper v. United States, 358 U.S. 307, 312-14 (1959) ___ ______ _____________
(finding probable cause to arrest where informer's detailed
tip was verified by police observations of corroborating but
otherwise innocent conduct).
-15- 15
time, and that he essentially guessed that the third
individual would be found in it. Nevertheless, we find that
Agent Newton formulated a reasonable arrest order that took
into account both his own personal observations and the facts
communicated to him by other agents. He knew the following
information: at least one additional individual was involved
in the scheme, a brown vehicle connected with the operation
had been seen behind the Ames store less than one hour before
the arrest,9 an individual who had exited the brown car had
entered the gray Olds, and the gray Olds had left the Ames
mall parking area with three passengers (all identified by
name or description), but following the entrance of the
armored van, reentered with only two passengers. As Agent
Newton testified, "I knew there was a third individual that
we didn't have a location for so I gave the directions to
locate the brown vehicle and arrest the individual in the
brown vehicle."
In the context of the arrest order, Agent Newton's
arrest signal was not, as Meade would have us believe, some
vague directive to locate any brown car and arrest whoever
might be in it. Rather, the arrest order focused on the
____________________
9. Although Meade argues that Agent Newton knew the brown
car had left the area behind the Ames store, we will not
charge Agent Newton with facts he specifically denied
knowing. See United States v. Zurosky, 614 F.2d 779, 786 ___ _____________ _______
(1st Cir. 1979) (declining to apply collective-knowledge
principle to impute knowledge to one officer who specifically
denied knowing exculpatory fact known by another officer).
-16- 16
participants in the robbery conspiracy, directing the agents
to locate the brown car and arrest "the third man" about whom ___ ___
descriptive communications had been exchanged that morning.10
Under the applicable totality-of-the circumstances approach,
see United States v. Uricoechea-Casallas, 946 F.2d 162, 165 ___ ______________ ___________________
(1st Cir. 1991), we conclude that Agent Newton gave the
arrest order upon probable cause, which the Supreme Court has
characterized as "a fluid concept -- turning on the
assessment of probabilities in particular factual contexts,"
Illinois v. Gates, 462 U.S. 213, 232 (1983).11 ________ _____
Under the fellow officer rule, we impute Agent
Newton's knowledge of facts amounting to probable cause to
Agent Fallon, the arresting officer. See Burns, 907 F.2d at ___ _____
____________________
10. We reject Meade's perfunctory contention that the
apprehension of other persons in a brown car that morning
near the site of his arrest belies the finding that Agent
Newton had probable cause to give the arrest order. The
district court did not address this issue, and our careful
review of the record reveals that, although occupants of
another brown vehicle were detained, none of the testifying
agents knew any details regarding the circumstances of that
detention. On appeal, the government claims that the other
brown vehicle had driven over a curb and appeared to be
attempting to flee the scene. In the absence of record
evidence supporting either that claim or Meade's suggestion
that the detention was a direct response to Agent Newton's
faulty arrest order, we, like the district court, assign no
significance to this event.
11. See also Ornelas v. United States, 116 S. Ct. 1657, 1661 ___ ____ _______ _____________
(1996) (explaining that probable cause is a "common sense,
nontechnical conception[] that deal[s] with 'the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act'" (quoting Gates, _____
462 U.S. at 231 (additional quotation marks and citation
omitted)).
-17- 17
236 n.7. The record also establishes, however, that Agent
Fallon individually had sufficient information, independent
of Agent Newton's knowledge, to arrest Meade. Agent Fallon
had been briefed earlier that morning that, as a SWAT team
member, he might be required to "interdict" an armed robbery
of an armored courier vehicle. He had also been provided
with photographs of Lanoue and Cole, and was in radio
communication with the other SWAT members on the scene. That
morning, Agent Fallon personally observed Lanoue, Cole, and
the person later identified as Meade, in the previously
identified gray Olds. Subsequently, he received a
transmission that an individual who had been seen in the gray
Olds had entered the parking area in a brown Pontiac, and he
observed the gray Olds with only Lanoue and Cole inside.
Upon hearing the arrest order -- to locate the
brown car and arrest the third man -- Agent Fallon possessed
sufficiently particularized knowledge to effect the arrest
order specifically as to Meade: he knew what the third man
looked like and had information that the man was in a brown
Pontiac in the parking area. In other words, at the time of
the arrest, the facts and circumstances known to Agent Fallon
(albeit somewhat different facts than those known to Agent
Newton) were sufficient to warrant a reasonably prudent
person to believe that Meade was committing an offense.
Contrary to Meade's suggestion, Meade was not simply some
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unfortunate who happened to be sitting in a brown car in the
parking lot that morning.12
Meade's final contention is that, even assuming he
associated with Cole and Lanoue on the morning of his arrest,
his "mere presence" in their company "a substantial period of
time before his arrest" did not provide probable cause for
his arrest. We disagree. On the morning of Meade's arrest,
agents observed: a brown vehicle parked next to the gray Olds
behind the Ames store; Meade exiting the gray Olds in front
of the Ames store then returning to the vehicle some time
later; Meade riding around with Lanoue and Cole in the gray
Olds; and Meade sitting in a brown vehicle near the location
and at the time of the suspected attempted robbery. While "a
____________________
12. Our conclusion is unchanged by the indication in the
record that other FBI agents may have begun the arrest
process before Agent Fallon found Meade, even though Agent
Fallon ordered Meade to the ground, told him he was under
arrest, and handcuffed and searched him. Even viewing the
evidence in the light most favorable to Meade, when Agent
Fallon came upon Meade, Meade had just exited his vehicle
and, at most, had begun to drop to his knees. On these
facts, regardless of the presently unknown knowledge of the
other agents (none testified at the suppression hearing), it
is apparent that Agent Fallon would have imminently and
lawfully discovered and arrested Meade. Cf. United States v. ___ _____________
Procopio, 88 F.3d 21, 27 (1st Cir.) (explaining that ________
otherwise unlawful search may be upheld where the government
proves "by a preponderance of the evidence that the evidence
would inevitably have been discovered by lawful means")
(citing Nix v. Williams, 467 U.S. 431, 444 (1984)), cert. ___ ________ _____
denied, 117 S. Ct. 620 (1996), and cert. denied, 117 S. Ct. ______ ___ _____ ______
1008 (1997); United States v. Ragsdale, 470 F.2d 24, 30-31 _____________ ________
(5th Cir. 1972) (upholding vehicle search by officer lacking
probable cause where partner officer on scene had probable
cause and search "would have almost instantaneously gone
forward" under that officer's direction).
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person's mere propinquity to others independently suspected
of criminal activity does not, without more, give rise to
probable cause to search that person," Ybarra v. Illinois, ______ ________
444 U.S. 85, 91 (1979), these facts reveal "substantially
more than a momentary, random, or apparently innocent
association between [Meade] and the known criminal activity."
United States v. Martinez-Molina, 64 F.3d 719, 727 (1st Cir. _____________ _______________
1995).13 We agree with the district court's conclusion that
the agents' "observations gave them a sound basis for
concluding that the large man in the red-hooded blue coat
sitting in the brown car was a participant with Lanoue and
Cole in the robbery."
Thus, we conclude that the agents had probable
cause to arrest Meade, and, therefore, that they lawfully
seized the firearm found during the search incident to his
arrest. See Uricoechea-Casallas, 946 F.2d at 165 ("If an ___ ___________________
arrest is lawful, the arresting officers are entitled to
search the individual apprehended pursuant to that arrest.").
II. II. ___
Speedy Trial Act Speedy Trial Act ________________
____________________
13. See also Martinez-Molina, 64 F.3d at 729 (noting that ___ ____ _______________
"officers in the field" are not required to "ignore the fact
that 'criminals rarely welcome innocent persons as witnesses
to serious crimes and rarely seek to perpetrate felonies
before larger-than-necessary audiences'") (quotation marks
and citation omitted).
-20- 20
Meade contends that by virtue of his initial arrest
and federal indictment in Rhode Island on the same charge
underlying this conviction, the instant proceedings violated
the Speedy Trial Act. By way of context, we describe the
procedural background underlying his argument. As we have
said, federal agents first arrested Meade in Bellingham,
Massachusetts on December 23, 1993. On that day, the
government issued out of the District of Rhode Island a
complaint that, inter alia, charged Meade with being a felon _____ ____
in possession of a firearm in violation of 18 U.S.C.
922(g)(1). On January 5, 1994, a federal grand jury in
Rhode Island returned an indictment charging Meade in five of
seven counts, including the felon-in-possession count,
conspiracy, attempted robbery, and using and carrying
firearms during and in relation to a crime of violence.
In July 1994, Meade moved to dismiss the felon-in-
possession count on the grounds of improper venue, arguing
that the government had no evidence that he had possessed the
firearm in Rhode Island.14 In August 1994, the government
also moved to dismiss the felon-in-possession count "in order
that charges in that count may be prosecuted in the District
of Massachusetts." On August 16, 1994, the federal district
____________________
14. Although Meade, Lanoue and Cole were arrested at the
site of the attempted robbery in Massachusetts, it appears
that the government prosecuted the case in Rhode Island
because many of the preparatory activities in the robbery
plan occurred there.
-21- 21
court in Rhode Island dismissed the count without
prejudice.15 On November 4, 1994, a Rhode Island federal
jury acquitted Meade of the remaining counts.
More than nine months later, on August 16, 1995, a
federal grand jury in Massachusetts indicted Meade on one
felon-in-possession count based upon the December 23, 1993
events. His arrest on this indictment occurred on August 23,
1995. The district court denied Meade's subsequent motion to
dismiss the indictment on his claim of a Speedy Trial Act
violation.
Meade now argues that his December 1993 arrest in
Bellingham, Massachusetts was "within the sole geographical
jurisdiction of the District of Massachusetts" and that, in
the absence of evidence that he possessed a firearm
elsewhere, the federal district court in Massachusetts had
exclusive "jurisdiction" over the prosecution of the felon-
in-possession charge. Thus, Meade reasons, the Rhode Island
proceedings on that count "were a nullity" and the failure to
indict him in Massachusetts within thirty days of his initial
December 23, 1993 arrest violated the express provisions of,
and purposes behind, the Speedy Trial Act, 18 U.S.C. 3161-
3167. Meade's argument is somewhat novel and it presents
questions of law which we review de novo. See United States __ ____ ___ _____________
____________________
15. The record does not clearly reveal whether the court
dismissed the count in response to Meade's or the
government's motion, or perhaps, on its own motion.
-22- 22
v. Rodriguez, 63 F.3d 1159, 1162 (1st Cir.), cert. denied, _________ _____ ______
116 S. Ct. 681 (1995).
The Speedy Trial Act, which "insures speedy
indictments as well as speedy trials," United States v. _____________
Samples, 713 F.2d 298, 301 (7th Cir. 1983), provides, in _______
pertinent part: "Any information or indictment charging an
individual with the commission of an offense shall be filed
within thirty days from the date on which such individual was
arrested . . . in connection with such charges," 18 U.S.C.
3161(b). The apparent purpose of the thirty-day arrest-to-
indictment rule "is to ensure that the defendant is not held
under an arrest warrant for an excessive period without
receiving formal notice of the charge against which he must
prepare to defend himself." United States v. Berry, 90 F.3d _____________ _____
148, 151 (6th Cir.) (citing United States v. McCown, 711 F.2d _____________ ______
1441, 1447 (9th Cir. 1983)), cert. denied, 117 S. Ct. 497 _____ ______
(1996).
Meade first argues that Article III, Section 2,
clause 3 of the United States Constitution16 and Federal Rule
of Criminal Procedure 1817 precluded the Rhode Island
____________________
16. "The trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; and such Trial shall be held
in the State where the said Crimes shall have been
committed." U.S. Const. art. III, 2, cl. 3.
17. "Except as otherwise permitted by statute or by these
rules, the prosecution shall be had in a district in which
the offense was committed." Fed. R. Crim. P. 18.
-23- 23
district court's exercise of jurisdiction over the felon-in-
possession charge against him. We disagree. The
Constitution and Rule 18 protect a criminal defendant's venue
-- not jurisdictional -- rights. See United States v. ___ ______________
Josleyn, 99 F.3d 1182, 1189 n.7 (1st Cir. 1996), cert. _______ _____
denied, 117 S. Ct. 959 (1997); see also id. ("Venue 'concerns ______ ___ ____ ___
only the place where the case may be tried[,]' whereas
jurisdiction 'has to do with the authority or power of a
court to try a case.'") (quoting Wayne R. LaFave & Jerold H.
Israel, Criminal Procedure 16.1, at 334 (1984 & Supp. 1991) __________________
(alteration in original)). We have further recognized that
venue is a waivable personal privilege designed for the
benefit of the defendant. See United States v. Santiago, 83 ___ _____________ ________
F.3d 20, 24 (1st Cir. 1996). As such, the constitutional and
statutory venue provisions are not restrictions on the
court's jurisdiction.18
Thus, at most, venue, but not jurisdiction, was
questionable in Rhode Island. Given that criminal venue
rights are waivable, had Meade consented to proceedings in
Rhode Island on the felon-in-possession count in the first
indictment, the disposition of those proceedings would have
been "valid" as a matter of venue as well as jurisdiction.
____________________
18. See 2 Charles A. Wright, Federal Practice and Procedure, ___ ______________________________
306, at 219-20 (1982) (citing cases); see also 18 U.S.C. ___ ____
3231 (providing, without geographical limitation, that
federal district courts have original jurisdiction "of all
offenses against the laws of the United States").
-24- 24
It follows that although the first indictment arguably was
returned in an improper venue for prosecution, for the
purposes of the Speedy Trial Act, it was not "a nullity" for
lack of jurisdiction.19
Having established that Meade's "jurisdictional"
challenge to the Rhode Island proceedings on the felon-in-
possession count is unavailing and that the Rhode Island
indictment was filed within the Speedy Trial Act's thirty-day
rule, we turn to the effect of the Massachusetts indictment,
returned approximately one-and-a-half years after his
original arrest. Meade suggests that the Speedy Trial Act
required his subsequent indictment also to have been filed
within thirty days from the December 23, 1993 arrest. We
disagree.
The first indictment, returned January 5, 1994, was
filed well within thirty days from Meade's December 23, 1993
arrest. Manifestly, the return of that indictment stopped
the thirty-day arrest-to-indictment time limitation. Based
on our previous holding that the thirty-day limit "applies
____________________
19. Meade does not argue that improper venue bears upon the _____
validity of the indictment for Speedy Trial Act purposes.
Because venue objections may be waived, we doubt that
improper venue would invalidate an indictment for these
purposes. Moreover, even assuming the "nullity" of the first
indictment, there exists support for the proposition that its
timely return would satisfy the thirty-day limit of
3161(b). See United States v. Perez, 845 F.2d 100, 102 ___ _____________ _____
(5th Cir. 1988) (stating that "[s]ection 3161(b) applies to
'any' indictment, including one that subsequently is found to
be defective or invalid").
-25- 25
only where, at the time of indictment, the charge upon which
a defendant was arrested and upon which a complaint was
issued is still pending," United States v. Krynicki, 689 F.2d _____________ ________
289, 293-94 (1st Cir. 1982), we disregard the period from the
dismissal of the charge on August 16, 1994, to the initiation
of the Massachusetts proceedings. Because the second
prosecution commenced with an indictment, not an arrest, it
simply did not trigger 3161(b)'s arrest-to-indictment
limitation. See United States v. Gurary, 860 F.2d 521, 528 ___ ______________ ______
(2d Cir. 1988); Samples, 713 F.2d at 303. We conclude that _______
the return of the indictment in Massachusetts more than a
year-and-a-half after the original arrest did not violate
3161(b).
This result does not frustrate the purposes
animating the Speedy Trial Act. In enacting the Speedy Trial
Act, Congress acknowledged that a person subject to prolonged
pre-trial delays faces a number of debilitating factors,
including "the disruption of family life, loss of employment,
anxiety, suspicion, and public obloquy." Krynicki, 689 F.2d ________
at 294. After dismissal of formal charges, however, any such
strain "is no greater than it is upon anyone openly subject
to a criminal investigation." United States v. MacDonald, _____________ _________
456 U.S. 1, 9 (1982) (involving Sixth Amendment speedy trial
guarantee), quoted in Krynicki, 689 F.2d at 294. While Meade ______ __ ________
may be disappointed that the government successfully brought
-26- 26
these proceedings after his acquittal in Rhode Island on
related charges, he cannot complain that the proceedings
thwarted the policies of the Speedy Trial Act.20
III. III. ____
Defense Theory Instruction Defense Theory Instruction __________________________
Meade argues that the district court erroneously
failed to instruct the jury on his theory of the case.
Specifically, he challenges the court's refusal to give a
requested instruction touching upon his "intent" in
possessing the firearm for the purposes of 18 U.S.C.
____________________
20. Meade further asserts that the "piecemeal prosecution"
of this case violates the United States Department of
Justice's policy "that several offenses arising out of a
single transaction should be alleged and tried together and
should not be made the basis of multiple prosecutions, a
policy dictated by considerations both of fairness to
defendants and of efficient and orderly law enforcement."
Petite v. United States, 361 U.S. 529, 530 (1960). The ______ _____________
Justice Department's so-called "Petite policy," which guards ______
against various dual or subsequent prosecutions, does not
help Meade given our repeated holding that the policy "does
not confer substantive rights on criminal defendants."
United States v. Gary, 74 F.3d 304, 313 (1st Cir.) (citing ______________ ____
cases), cert. denied, 116 S. Ct. 2567 (1996). _____ ______
Finally, Meade perfunctorily complains that the
"government should not [have been] permitted to hedge against
an adverse verdict" by seeking this conviction after the
acquittal in Rhode Island. To the extent Meade suggests an
unconstitutional pre-indictment delay, his conclusory plaint
falls well short of the requisite showing of significant
prejudice to him and intentional bad-faith delay on the part
of the government. See United States v. Crooks, 766 F.2d 7, ___ _____________ ______
11 (1st Cir. 1985). As such, we deem this contention waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). ___ _____________ _______
-27- 27
922(g)(1).21 "Ordinarily, a defendant is entitled to an
instruction on his theory of the case as long as it is
legally valid and there is sufficient evidence, viewed in the
light most favorable to the defendant, to permit a reasonable
juror to credit the defendant's theory." Josleyn, 99 F.3d at _______
1194. Nevertheless, the court need not adopt the requested
instruction verbatim if the charge as a whole adequately
covers the defense theory. See id.; United States v. ___ ___ ______________
Montanez, 105 F.3d 36, 39 (1st Cir. 1997). ________
At trial, Meade testified to the following events,
which we take as true for the purposes of this appeal. In
early December 1993, he went to the home of a friend, Paul
Bartel, who had just threatened to commit suicide. When
Meade arrived at Bartel's residence, Bartel was playing with
a gun. Meade took the gun from Bartel in order to prevent
Bartel from harming himself, and placed the gun in the back
seat of his (Meade's) car. He forgot about the gun and did
not touch it again until shortly before his arrest on
December 23, when he spotted it in his car and placed it in
his pocket.
At the close of the evidence, the district court
instructed the jury on the concept of actual possession, as
well as constructive possession substantially in accord with
____________________
21. 18 U.S.C. 922(g)(1) makes it unlawful for a convicted
felon to "possess in or affecting commerce, any firearm or
ammunition."
-28- 28
our discussion in United States v. Rogers, 41 F.3d 25, 29-30 _____________ ______
(1st Cir. 1994) (explaining the meaning of "constructive
possession" for purposes of 922(g)). The court further
distinguished "ownership" from possession, instructing that
the government need not prove Meade's ownership of the
firearm. With respect to the requisite mens rea, the court ____ ___
explained that the government must have proven that Meade
"knowingly" possessed the firearm; that is, "he possessed it
voluntarily and purposefully and not by accident or mistake."
Finally, the court told the jury that the purpose for which
Meade possessed the firearm was irrelevant to the question
whether he committed the offense.22
Meade requested the court to instruct the jury
that, in order to prove the "knowing possession" of the
firearm, the government must establish that he "possessed the
firearm with the intent to exercise dominion and control over
it," and that "not every incidental contact with the firearm
would automatically compel [the jury] to find that . . . he
possessed . . . it as alleged in the indictment." For
support, Meade cites the unpublished case23 of United States _____________
____________________
22. Because we ultimately find that Meade's requested
instruction is incorrect as a matter of law, and because he
does not otherwise appeal the court's charge, we need not
pass on the accuracy of the charge as given.
23. Our Local Rules prohibit the citation of unpublished
opinions, which are bereft of any precedential force, except
in related cases. See 1st Cir. R. 36.2(b)6. ___
-29- 29
v. DiNovo, 57 F.3d 1061 (1st Cir.) (TABLE), 1995 LEXIS 14622, ______
1995 WL 354829, cert. denied, 116 S. Ct. 404 (1995). Meade ____ ______
further asked the court to instruct the jury that "dominion"
and "control" are "overlapping concepts" and that "[d]ominion
. . . is generally defined as 'perfect control in right of
ownership.'" Rogers, 41 F.3d at 29, 30 (quoting Black's Law ______
Dictionary 436 (5th ed. 1979)).
Meade informs us that his "defense theory" was
that, because he did not have the intent to exercise dominion
and control over the firearm, he did not possess it for
"criminal purposes" and thus, he lacked the "requisite
intent" to possess. He complains that the court's failure to
charge the jury as requested deprived the jury of the
opportunity to consider the circumstances under which the
firearm was found on his person. He contends that the jury
should have been able to give due weight to his "prudent"
decision first to take the firearm from Bartel and then to
remove it from his car ("rather than leave it there") upon
rediscovering it.
We are unpersuaded by Meade's highlighting of
choice phrases from the unpublished DiNovo case and from ______
Rogers's discussion of constructive possession24 to fashion a ______
novel and somewhat heightened definition of possession that
____________________
24. See Rogers, 41 F.3d at 30 (explaining that, under trial ___ ______
court's instructions, "dominion" encompassed the concept of
control).
-30- 30
approximates ownership.25 His attempt to mold his novel
definition to suit his "absence of criminal purpose" defense
theory is a further stretch. Viewing the evidence in the
light most favorable to Meade, we conclude that his "good
purpose" in taking and retaining possession of the gun would
not have constituted a valid defense as a matter of law.26
Therefore, we find no error in the court's refusal to give
____________________
25. That Meade assertedly did not own the gun in his pocket
does not vitiate his possession of it for 922(g) purposes.
See United States v. Hubbard, 61 F.3d 1261, 1272 (7th Cir. ___ _____________ _______
1995), cert. denied, 116 S. Ct. 1268 (1996). Ownership, for _____ ______
purposes of constructive possession analysis, "may be highly _______________________
relevant where the authority to exercise control is _______
disputed." Rogers, 41 F.3d at 30 (emphasis added). The ______
presence of the gun in Meade's coat pocket, however, more
accurately triggers the concept of actual, rather than
constructive, possession. See United States v. Zavala ___ ______________ ______
Maldonado, 23 F.3d 4, 7 (1st Cir. 1994) (describing actual _________
possession as "immediate, hands-on physical possession"). In
any event, under either an actual or constructive possession
rubric, Meade's own testimony dispensed with any dispute
regarding his control of the gun; he admitted that he saw the
gun in his car, and, unencumbered, picked it up and placed it
in his pocket.
26. We note that Meade did not (and does not) claim that he
was entitled to an instruction in the nature of a necessity
or justification defense. See United States v. Gomez, 92 ___ ______________ _____
F.3d 770, 774 (9th Cir. 1996) (explaining application of
justification defense in felon-in-possession case) (citing
cases); United States v. Lomax, 87 F.3d 959, 961-62 (8th Cir. _____________ _____
1996) (same); see also United States v. Perez, 86 F.3d 735, ___ ____ _____________ _____
737 (7th Cir. 1996) ("The defense of necessity will rarely
lie in a felon-in-possession case unless the ex-felon, not
being engaged in criminal activity, does nothing more than
grab a gun with which he or another is being threatened (the
other might be the possessor of the gun, threatening
suicide)"); United States v. Newcomb, 6 F.3d 1129, 1137-38 ______________ _______
(6th Cir. 1993) (allowing justification defense instruction
where defendant removed gun from person threatening to shoot
another, and briefly handled it to remove ammunition).
-31- 31
Meade's requested instruction on his theory of the case. See ___
United States v. Rose, 104 F.3d 1408, 1416 (1st Cir. 1997) ______________ ____
(explaining that such refusal warrants reversal only if,
inter alia, defendant's requested instruction was _____ ____
"substantively correct").
IV. IV. ___
Sentence Enhancement Based On Acquitted Conduct Sentence Enhancement Based On Acquitted Conduct _______________________________________________
At sentencing, the district court found that Meade
possessed the firearm in connection with criminal conduct, of
which the jury in Rhode Island acquitted him, surrounding the
attempted robbery of the armored courier car. The court,
therefore, increased his base offense level by four levels
pursuant to U.S.S.G. 2K2.1(b)(5).27 Citing dicta in United ______
States v. Lanoue, 71 F.3d 966, 983-84 (1st Cir. 1995), Meade ______ ______
argues (as he did below) that, as a matter of law, the court
____________________
27. Section 2K2.1(b)(5) provides, in pertinent part:
If the defendant used or possessed any
firearm or ammunition in connection with
another felony offense; or possessed or
transferred any firearm or ammunition
with knowledge, intent, or reason to
believe that it would be used or
possessed in connection with another
felony offense, increase by 4 levels.
U.S. Sentencing Guidelines Manual 2K2.1(b)(5) (Nov. 1995).
-32- 32
could not constitutionally increase his sentence based on
acquitted conduct.28
Meade's claim has no force because the Supreme
Court recently abrogated the dicta in Lanoue and held "that a ______
jury's verdict of acquittal does not prevent the sentencing
court from considering conduct underlying the acquitted
charge, so long as that conduct has been proved by a
preponderance of the evidence." United States v. Watts, 117 _____________ _____
S. Ct. 633, 638 (1997); see id. at 634 n.1. Thus, the ___ ___
sentencing court did not err in considering conduct
underlying charges of which Meade had been acquitted.
Meade did not challenge either below or in his
appellate brief the weight of the court's factual finding
that he possessed the gun in connection with the attempted
robbery. At oral argument, however, Meade's counsel raised a
related claim: that Watts mandates an evidentiary hearing _____
before a court may sentence for acquitted conduct. The
assertion is wrong. Although Watts explains that the _____
sentencing guidelines require facts pertinent to sentencing
to be proven by a preponderance of the evidence, see 117 S. ___
Ct. at 637, it does not set forth a requirement that a
____________________
28. In Lanoue, a panel of this circuit expressed in dicta ______
its belief in the unconstitutionality of permitting
imprisonment on the basis of acquitted conduct, and stated
that the guidelines' apparent requirement that a court
sentence for such conduct "utterly lacks the appearance of
justice." 71 F.3d at 984.
-33- 33
district court hold an evidentiary hearing to establish such
facts, whether or not they encompass acquitted conduct.
Moreover, we do not mandate such a hearing in this circuit.
See United States v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. ___ _____________ _______
1992) ("It is clear that a defendant is not automatically
entitled to a full-blown evidentiary hearing at the time of
sentencing."). Finally, because Meade did not request an
evidentiary hearing to challenge the facts underlying the
Presentence Report's recommendation to count the acquitted
conduct,29 he has relinquished this final claim, such as it
is, on appeal. See id. (finding that defendant waived the ___ ___
right to complain of the absence of an evidentiary hearing by
failing to request one).
V. V. __
Conclusion Conclusion __________
For the foregoing reasons, we affirm the district ______
court's judgment in all respects.
____________________
29. The district court adopted the statement of relevant
conduct contained in the Presentence Report which largely
recounted the facts disclosed during the suppression hearing
and additionally noted that a pair of handcuffs were found in
Meade's vehicle.
-34- 34
United States v. MacDonald ( 1982 )
United States v. Gary ( 1996 )
united-states-v-walter-v-zurosky-jr-united-states-of-america-v-edward ( 1979 )
United States v. William Crooks A/K/A "Billy," ( 1985 )
United States v. Schnejer Zalman Gurary, Nochum Sternberg ... ( 1988 )
United States v. Rose ( 1997 )
United States v. Josleyn ( 1996 )
United States v. Jaime Uricoechea-Casallas ( 1991 )
Johnie F. Karr v. Uniform Patrolman Smith and Officer L.N.U.... ( 1985 )
United States v. Billy G. Samples ( 1983 )
United States v. Geraldo Rodriguez, A/K/A Jose Rodriguez ( 1995 )
Mendoza v. City of Rome ( 1994 )
United States v. Diallo ( 1994 )
United States v. Procopio ( 1996 )
United States v. Shareef ( 1996 )
United States v. Rafael Angel Zavala Maldonado ( 1994 )
United States v. Montanez ( 1997 )