USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1819
UNITED STATES,
Appellee,
v.
OTIS DARREN LEWIS,
Defendant - Appellant.
____________________
No. 93-1820
UNITED STATES,
Appellee,
v.
MICHAEL STARKS,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
___________________

____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
_____________________

William A. Brown, by Appointment of the Court, for appellant

________________
Otis Darren Lewis.
James P. Duggan, by Appointment of the Court, for appellant
_______________
Michael Starks.
Thomas C. Frongillo, Assistant U.S. Attorney, with whom
_____________________
Donald K. Stern, United States Attorney, and Michael J. Pelgro,
_______________
_________________
Assistant U.S. Attorney, were on brief for appellee.

____________________
November 14, 1994
____________________

-2-

TORRUELLA,

Circuit Judge.
______________

federal

grand

jury

returned a

five-count indictment charging Otis

Michael Starks with

(2)

(1) being felons-in-possession of

firearms,

carrying and using firearms during and in relation to a drug

trafficking crime,
cocaine base.

and (3) possession with

intent to distribute

Following a four day trial, a jury found Lewis and

Starks guilty on all counts.

The court then sentenced

serve 322 months in prison.

144

Darren Lewis and

months in

prison.

Lewis to

The court sentenced Starks to serve

Lewis

and

Starks

convictions and sentences on various grounds.

now

appeal

their

For the

following

1992, a confidential

informant

reasons, we affirm.
BACKGROUND
BACKGROUND
__________
A.
A.

Facts
Facts

On Friday,
telephoned

Officer

Department

"Gang

stated

that two

August 14,
Robert

Unit" on
men, Otis

Starks ("Starks"), were

Mary's
Streets

Bar, located
in

on

Leedberg

of

a cellular
Darren

the

Brockton

phone.

the

corner

downtown Brockton.

involved in another case on August

The informant

Lewis ("Lewis")

in possession of firearms
of Montello

Because

Police

and Michael

inside Pete &

and

Franklin

Officer Leedberg

14, 1992, he did not

was

respond

to the tip.
The
Leedberg

confidential

informant

again telephoned

on August 15, 1992, at about

at 12:20 a.m.
told Officer

on August
Leedberg

16, 1992.
that

Lewis

Officer

11:00 p.m. and then again

The confidential

and

Starks

were

informant
again

in

- 3 -

possession

of firearms in Pete & Mary's

Bar.

He stated that he

had seen the firearms and the informant then described to Officer
Leedberg how Lewis and Starks were dressed.

After obtaining this

information, Officer Leedberg and Brockton Police

Officers James

Smith and Thomas Keating established surveillance in the vicinity

of Pete

& Mary's Bar.

The officers were in

an unmarked police

cruiser and were dressed in street clothes.

During the course of their investigation, Officer Smith

left

the

unmarked

police

Montello Auto Sales, a

street from the
and

car

to

conduct

surveillance

used car lot located directly

front of Pete &

Mary's Bar.

from

across the

Officers

Leedberg

Keating remained in the unmarked police cruiser and drove to

a surveillance post in

a parking lot behind

Pete & Mary's

Bar.

They watched the rear door of the bar from this location.

At about 12:35 a.m., the confidential informant arrived

in the parking lot behind the bar.

Officers Leedberg and Keating

met with the informant and observed him enter and later leave the
bar.

After leaving the bar, the informant conferred with Officer

Smith in

the used car lot.

Officer Smith then

called Officers

Leedberg

and Keating on the

radio.

After

receiving this call,

Officers Leedberg and Keating moved their unmarked police cruiser

to a position from which they could observe the front of the bar.

At about 1:00 a.m., Officer Smith saw Lewis and Starks leave Pete

and Mary's Bar, cross Montello Street, and approach a brown Buick
parked at the D'Angelo's Sub Shop ("D'Angelo's") parking lot.
As

Lewis

and

Starks

stood

near

the

brown

Buick,

- 4 -

Officers

Leedberg

and

D'Angelo's

parking lot

recognized

the unmarked

Keating
in their

were

rapidly

approaching

unmarked police

police car

as a

car.

result of

the

Starks

a previous

encounter with Officers Leedberg and Smith.

As
Smith, who

Officers

Leedberg

was still conducting

and

Officer

place a black object

advanced, Officer

surveillance from the

lot adjacent to the D'Angelo's parking

down,

Keating

used car

lot, observed Starks bend

under the Buick,

and straighten up.

Smith then saw Lewis similarly bend down on the driver's

side of the

Buick.

Officer Leedberg then

police vehicle behind the brown Buick.

parked the

unmarked

As Officer Keating exited

the

car, he

police car.
driver's

saw Starks
Officer

waiving his

approaching the

Keating then observed Lewis stand up on the

side of the Buick.

car, Officer

hands and

After exiting

Leedberg repeatedly

keep your hands in sight."

the unmarked police

shouted, "Police,

don't move;

Officer Smith then pat-frisked Lewis.

Officer Leedberg pat-frisked Starks.

Neither officers found any

guns or narcotics

instructions from

at this

Smith, Officer Keating

pair

had just

millimeter

On

then searched the

bent down

and

stood up.

Beretta pistol and a

substance later determined

Buick.

time.

Officer

parking lot where

He

found a

vial containing 17

the

loaded 9

pieces of a

to be "crack cocaine" under the brown

He also found a loaded .45 caliber Star pistol and a vial

containing

22

pieces

of

alongside the brown Buick.

crack

cocaine

under

car

parked

The police officers then placed Lewis

and Starks under arrest.

- 5 -

B.
B.

Procedural History
Procedural History

A federal

grand jury returned a

five-count indictment

charging Lewis and Starks

firearms

with (1) being felons-in-possession of

in violation of 18 U.S.C.

922(g)(1), (2) carrying and

using firearms during and in relation to a drug trafficking crime

in

violation

of 18

U.S.C.

intent to distribute
841(a)(1).

cocaine base

Following the

motion

to suppress the guns

seized

on the

unlawful

924(c);

in violation of

and narcotics which

the police had

arrest as

calculated

that,

committed by Lewis and

of 26.
in

in prison.

category III and

Lewis and

The

this

counts.

The

guidelines,

court

the crimes

offense level

that Lewis' prior crimes placed him

and sentenced him

court placed Starks

sentenced him

Starks now

court denied

Starks amounted to a total

criminal history category IV

months

on all

the sentencing

The court determined

fruit of an

Following a four day trial,

Starks guilty

under

being the

The district

motion and admitted the evidence.

Lewis and

21 U.S.C.

Starks filed a

seizure.

jury found

possession with

indictment, Lewis and

morning of the

search and

and (3)

to serve 144

appeal various

to serve 322

in criminal history
months in

issues connected

prison.

to their

convictions and sentences.

DISCUSSION
DISCUSSION
__________
I.
I.

The evidentiary hearing

The evidentiary hearing

Lewis and Starks filed a motion to suppress, contending

that

the

cocaine.

police officers

improperly

With respect to

the motion, Lewis

- 6 -

seized

the firearms

and

and Starks contend

that

the district court erred by failing to order an evidentiary

hearing.
court

As

a preliminary

matter, we

is entrusted with deciding whether

hearing

and we

evidentiary
abused

will

not overrule

hearing unless the

its discretion.

280 (1st Cir. 1993).

the

motion."

the district

to hold an evidentiary
refusal to

district court is

convene

an

shown to have

United States v. McAndrews, 12 F.3d 273,

_____________
_________

Lewis and Starks have made no such showing.

"[A] criminal defendant has

right to insist that

note that

no absolute or presumptive

the district court take testimony

on every

United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.

______________
______

1990) (citations
suppress are

omitted).

Evidentiary hearings on

required only when

a defendant makes

showing that a warrantless search has occurred.

motions to

a sufficient

United States v.
_____________

Migely, 596 F.2d 511, 513 (1st Cir.), cert. denied, 442 U.S. 943
______
_____________
(1979).

To make this showing "[t]he defendant must allege facts,

'sufficiently definite, specific,

to

enable

presented.'"

the court

to conclude

detailed, and
that

nonconjectural,

a substantial

claim is

Id. (quoting Cohen v. United States, 378 F.2d 751,

__

_____

_____________

761 (9th Cir.), cert. denied, 389 U.S. 897 (1967).

____________
must allege facts that,

The defendant

if proven, would entitle him

to relief.

Migely, 596 F.2d at 513.

______

Lewis and Starks have not shown that they were entitled
to

an evidentiary hearing.

were essentially
suppress.

The facts

uncontested at

Lewis and Starks

indicated that

the police

surrounding their arrest

the hearing

on

were required to

the motion

to

allege facts that

officer's discovery of

the guns

and

- 7 -

cocaine

violated

Neither

Lewis nor

The

lone

the

Amendment.

Starks personally

affidavit in

prepared by Starks'

Fourth

support of

They

swore out
the

alleged

none.

any affidavits.

motion to

suppress was

attorney, who had no first-hand knowledge of

the relevant events; it contains only conclusory allegations that

the

police lacked

suspicion
Starks.

of

probable

cause or

criminal activity

In contrast,

when

a reasonable
they

the government filed

articulable

arrested Lewis

and

detailed affidavits

sworn

out by

Officers

Smith and

Leedberg

in support

of

its

opposition to Lewis' and Starks' motion to suppress.

In sum, the affidavit in
motion to

suppress does not

definite,

specific, detailed,

support of Lewis' and Starks'

allege facts that

are sufficiently

and nonconjectural to

enable the

court to conclude that

a substantial claim is presented.

Thus,

the district court was

completely justified in refusing to

hold

an evidentiary hearing where the factual matters were essentially

uncontested.
II.
II.

The motion to suppress

The motion to suppress

Lewis and Starks contend that the contraband the police

officers

confiscated

excluded

as

the

from

fruit

of

the
an

parking lot
unlawful,

should

have

warrantless

been

search.

Specifically, Lewis and Starks assert that the police seized them
without probable cause immediately after they left
Bar and that this

Pete & Mary's

seizure occurred before the officer

allegedly

observed them abandon the guns and cocaine.

First,

we agree

with

the government

- 8 -

that Lewis

and

Starks lacked

standing under

the Fourth Amendment

the

Moreover, even

assuming arguendo
________

search.

Starks had

standing,

we

find

that the

search

to challenge

that Lewis

and

satisfied

the

requirements of the Fourth Amendment.

While we
on

review the district court's

a motion to suppress for

findings of fact

clear error, we review questions of

law de novo.
_______

United States v. Zapata, 18 F.3d 971, 975 (1st Cir.

_____________
______

1994). "This

phenomenon

sets

the

statement of appellate practice in

Though

we

treat

the

factual

stage

A.
A.

findings

nuanced

with

Id.
___

deference,

we

Id.
___

Standing
Standing

against unreasonable

seizures extends only to those places and interests

in which the defendant

United States
_____________

more

constitutional conclusions

The Fourth Amendment's protection

searches and

Fourth Amendment cases."

"[subject] the trial court's ultimate

to plenary oversight."

for

has a reasonable expectation

v. Cruz Jim nez,

____________

894 F.2d

1, 5

of privacy.

(1st Cir.

(citing Rakas v. Illinois, 439 U.S. 128, 140-50 (1978)).

_____
________

1990)

Such an

expectation of privacy is a threshold standing requirement that a

defendant
Fourth

must establish

before a

Amendment analysis.1

court can

proceed with

any

Cruz Jim nez, 894 F.2d at 5 (citing

____________

____________________
1

"This inquiry is

often referred

to as

a 'standing'

issue,

although it is not an inquiry that serves the function of

traditional standing doctrine, which is to enable a federal court
to determine whether there is such case or controversy that it
may take jurisdiction of under Article III." Cruz Jim nez, 894
_____________
F.2d at 5 n.1 (citations omitted). The concept of standing under
the Fourth Amendment refers to the defendant's burden of proving
a legitimate expectation of
privacy as a prerequisite to
challenging assertedly unlawful police conduct. United States v.
_____________
- 9 -

United States v. Salvucci, 448 U.S. 83, 90-91 (1980)).

_____________
________
Fourth
he

Amendment protects is the security a man relies upon when

places

protected
his

"What the

himself or

violation,
exhibited

property

area, be it his home or

automobile."

(1966).

his

Hoffa
_____

"Essentially,
[a

defendant]

within a

his office, his hotel room or

v. United States,
______________
. . .
must

constitutionally

to

prove

385 U.S.

293, 301

Fourth

Amendment

demonstrate not

only

that

he

a subjective expectation of privacy, but also that his

expectation was

justifiable under the

attendant circumstances."

Cruz Jim nez, 894 F.2d at 5 (citing United States v. Aguirre, 839
____________
_____________
_______
F.2d 854, 857 (1st

Cir. 1988)).

of

this issue.

persuasion

on

The defendant bears

Cruz Jim nez,

894

the burden
F.2d

at 5

____________
(citations omitted).
A
close

defendant who

fails to

demonstrate

a sufficiently

connection to the relevant places or objects will not have

standing to claim

that they were

illegally searched or

United States v. S nchez, 943 F.2d 110, 113 (1st

_____________
_______
also United States
____ _____________
cert. denied, 113
____________

v. Pierce,
______
S. Ct.

lacked standing to
point during

959 F.2d 1297,

621 (1992) (holding

object to a

the trial or

seized.

Cir. 1991); see

___
1303 (5th
that a

search because he

appeal "attempted to

Cir.),

defendant

never at

any

establish, much

less prove, any privacy interest in the [contraband]").

Lewis and Starks lacked

standing to protest the police

officers' search of the parking lot because they failed to assert

____________________
S nchez, 943 F.2d 110, 113 n.1 (1st Cir. 1991).
_______
use the term 'standing' somewhat imprecisely to
threshold substantive determination." Id.
___
- 10 -

"We therefore
refer to

this

any privacy interest in

that

the seized contraband.

It may well

be

Lewis and Starks had a reasonable expectation of privacy in

the contraband, but if so, they failed to assert it in support of

their motion to
swore

suppress.

Neither

out any affidavits

Lewis nor Starks

with respect

to such

personally

an expectation.

Rather, the lone affidavit in support of their motion to suppress

was prepared by Starks' attorney, who had no first-hand knowledge

of the relevant

events.

Moreover, this affidavit

contains only

conclusory allegations that the police lacked probable cause or a

reasonable articulable suspicion
arrested Lewis and Starks.
may have feared that
contraband

the defendant

innocence."

and Starks

may have claimed in

over twenty years that testimony

at

cannot

be used

trial on

the

the

as direct

question of

given to

evidence
guilt

or

United States v. Garc a-Rosa, 876 F.2d 209, 219 (1st

_____________
___________

1989) (citing Simmons v.

_______

(1968)).

Lewis'

United States, 390

_____________

and Starks' only

contraband appears to
them;

any interest they

standing requirements

against

Cir.

We appreciate that Lewis

they

would be used against them at trial; however, "it has

been well settled for

meet

of criminal activity when

interest in

be to avoid its

U.S. 377, 390

suppressing the

evidentiary force against

this is not an interest protected by the Fourth Amendment.

Although we find that Lewis and Starks lack standing to

raise a Fourth Amendment challenge, we note that in any event the

search

satisfied the

Fourth

abandonment and plain view.

Amendment under

the doctrines

of

- 11 -

B.
B.

Abandonment
Abandonment

When a

defendant abandons property before

occurs,

the

Fourth

Amendment

property

is

not the

fruit of

California v.
__________
requires

Hodari D., 499

__________

is not
an

illegal search

because

the

and seizure.

U.S. 621, 629 (1990).

"either physical force . .

submission

implicated

a "seizure"

An arrest

. or, where that is absent,

to the assertion of authority."

Id. at 626 (emphasis

___

in original).

The police

have made an

assertion of

authority

only

words and

actions would

have caused

an average

if their

citizen to believe
United States
______________
Hodari,
______
before

he was not free to leave.

v. Mendenhall,
__________

446 U.S.

a police officer was chasing

the officer tackled him,

cocaine
"assuming

from his

person.

544,

Id. at 628 (citing

___
554 (1980)).

the defendant and, moments

the defendant tossed

Id. at
___

In

623.

The Court

a rock of

held that,

that [the officer's] pursuit . . . constituted a 'show

of authority' enjoining [the

defendant] to halt, since

not comply

with that injunction

tackled."

Id. at 629.
___

he was not seized

Thus, the cocaine

[he] did

until he was

abandoned during the

course of the chase was not the fruit of a seizure.

We follow
Police had made
Starks in the

Hodari and find

______

a show of force

that, even if

when they approached

and

expressly found that

straightened

announced

Lewis and

D'Angelo's parking lot, Lewis and Starks abandoned

the contraband before they submitted to official

district court

the Brockton

up

themselves

near the
and

then

brown

authority.

Lewis and Starks

Buick

pat-frisked

bent down

before the
Lewis

The

police

and Starks.

- 12 -

Thus, though Lewis and Starks eventually submitted to the

officers, this
contraband.

submission occurred after they

Consequently, the

had abandoned the

motion to suppress

denied under the doctrine of abandonment.

police

was properly

- 13 -

C.
C.

Plain View
Plain View

The "plain
evidence

view" doctrine

without a warrant

"plain view,"

(2) the

allows the police

so long

police are

as (1)

to seize

the evidence

legitimately on the

is in

premises

where the evidence is seized, and (3) the evidence is immediately

and apparently connected to

the criminal activity.

Coolidge
________

v.

New Hampshire, 443 U.S. 443, 464-73 (1971).

_____________
Lewis

and Starks do not contest the fact that the guns

and cocaine were in

activity
them.

plain view and their connection

was immediate

and

apparent when

Rather, Lewis and Starks contend

to criminal

the officers

seized

that the police were not

legitimately in the parking lot where the evidence was seized.

The district court found

that the police officers were

legitimately in the parking lot and that they had the "reasonable

articulable suspicion" necessary to justify an investigatory stop

under

the Fourth

(1968);

Amendment.

Terry
_____

v. Ohio,
____

392

U.S. 1,

21

see also Adams v. Williams, 407 U.S. 143 (1972) (holding

________ _____
________

that a Terry stop was

_____

justified when an informant told

a police

officer that an individual in a nearby vehicle was carrying drugs

and

weapons).

district court
told

The record

amply supports this

found that a reliable

the Brockton

Police that

conclusion.

The

confidential informant had

Lewis and

Starks

were carrying

contraband

in Pete &

Mary's Bar.

Officer Leedberg's affidavit

established that the informer had previously provided information

that led to

the arrest

of twelve defendants

cases in the Brockton District Court.

in seven

criminal

Further, during the course

- 14 -

of

their

surveillance outside

officers

were

able

to

Pete

& Mary's

Bar,

some

portions

corroborate

confidential informant's tip.

Specifically,

the police

the officers

able to verify that the informer had been inside the

thus

in

possession

position
of

had

coupled

with

described.
the

investigatory

stop.

were

and

by

also

previous

police

the

the

were

bar and was

Starks

and Starks were

Consequently,

informer's

provided

Lewis

The surveillance

that Lewis

corroboration

legitimately

see that

firearms.

officers to observe
informer

to

of

were

in

allowed

the

dressed as

the

informer's

reliability

observations,

and

justified

tip,

the

an

Thus, because we agree that the police were

in the parking lot and because the guns and cocaine

in plain view and their connection to criminal activity was

apparent, the officers properly seized the evidence.

III.
III.

The confidential informant's identity

The confidential informant's identity

Lewis

and

Starks

erroneously denied their

confidential informant.
informant played a
testimony was
could

assert

the

district

motion to disclose the identity

Specifically, they

material role

vital because

"amplify,

that

in their arrest

it pertained

contradict,

contend

or

clear

the

of the

that

the

and that

his

to their
up"

court

defense and

Government's

evidence.

We review the district court's decision not to disclose

the

identity of

discretion standard.

confidential

informer

under

an

abuse

of

See United States v. Jackson, 918 F.2d 236,

___ _____________
_______

240 (1st Cir. 1990).

- 15 -

The courts have long recognized that the Government has

a "privilege to withhold from

disclosure the identity of persons

who furnish information of violations of law to

with enforcement of

that law."

Roviaro v.
_______

officers charged

United States,
_____________

353

U.S.

53, 59

(1957).

furtherance and
law

protection of

enforcement.

citizens
crimes

"The purpose

The

their

to law-enforcement

knowledge of

officials

encourages them

privilege is

the public interest

to

and,

the

in effective

the obligation

of

the commission

of

by preserving

perform that

This privilege, however, is not absolute.

the

the

privilege recognizes

to communicate

anonymity,

of

their

obligation."

Id. at 60-61.
__

Id.
__

"Where

disclosure of an informer's identity, or the contents of his

communication,

is

relevant and

helpful

to the

accused, or is essential to a fair determination

privilege must give way."

of an

of a cause, the

Id.
__

The resolution of this

circumstances

defense

of each case.

issue depends on the particular

Id. at
__

62.

The

trial court must

balance the public interest in protecting the flow of information

against the individual's
so doing,
the

it should take

possible

informer's

right to prepare his defense.

defenses,

testimony,

into consideration the

the

possible

and other

relevant

burden is on the defendant to demonstrate

Id.
__

In

crime charged,

significance

of

the

factors.

Id.
__

The

that the circumstances

demand disclosure; "[mere] speculation . . . is not sufficient to

meet the heavy burden which rests on an accused to establish that

the

identity of

a confidential

informant

- 16 -

is necessary

to his

defense."

United States v. Giry, 818 F.2d

______________
____

cert. denied, 484

_____________

U.S.

Skeens,
______

1066, 1070

449

informant

F.2d
is

participant in
in

"mere

855 (1987)

(quoting

(D.C.

tipster,"

120, 130 (1st Cir.),

Cir.
as

United States
_____________

1971)).

opposed

the offense charged, disclosure

the exceptional

case

where it

is

vital to

Where

to

an

v.

the

active

is required only
a fair

trial.

United States v. Batista-Polanco, 927 F.2d 14, 19 (1st Cir. 1991)

_____________
_______________
(citing Giry, 818 F.2d at 130).
____

Lewis and Starks argue that the informant was more than

a mere tipster and that his testimony was vital to their defense,

in that he provided the police with the information that resulted

in

their arrest.

"set

them

unanswered

They imply that

up."
due

They
to

list

the

district

disclosure of the informant.

the

the informant may

number of
court's

have even

questions
refusal

that were
to

require

These include questions concerning

nature of the relationship, if any, between the informer and

Lewis and
grudge

Starks and

against

them.

whether the informer

Consequently, they

harbored a
conclude

personal
that

the

informer's absence precluded a fair trial.

We disagree.

The district court properly refused to order disclosure

of

the informant's

identity.

The

record

indicates that

the

informant was merely a tipster in the arrest of Lewis and Starks.

The informer simply spoke with the police, first by telephone and
then

in

person,

to inform

them

that

carrying firearms in Pete & Mary's Bar.

Lewis

and Starks

were

The arrest then occurred

approximately twenty minutes after the police last spoke with the
- 17 -

informer.

The

arrest

the parking

in

informer was

not

lot and,

present at
thus,

the scene

was in

amplify, contradict, or clear up the testimony of

no

of the

position to

any government

witness.
Moreover, there is ample
up" theory.

Though the informer told the officers that Lewis and

Starks would be leaving through

Bar, he

evidence to refute any "frame

the front door of Pete

& Mary's

did not tell them that Lewis and Starks would proceed to

the D'Angelo's parking

lot.

Thus,

because he did not

tell the

police where Lewis and Starks would go upon leaving Pete & Mary's

Bar,

the informant could not

arrest
the

would occur.

informer in

Furthermore, the

the

virtually impossible

court

or where the

police officers never saw

D'Angelo's parking
that the

especially in light of
Starks attempting

have controlled when

lot.

This

informer planted the

the fact that the officers

to hide it.

it

contraband,

saw Lewis and

Thus, we find that

did not abuse its discretion

makes

the district

when it denied the motion to

disclose the informer's identity.

IV.
IV.

The missing witness instruction

The missing witness instruction

Lewis and Starks contend

when

it refused

regard to
that

to

issue a

would
court's

missing

the confidential informant.

the instruction was

witness

that the district court erred

in
have

refusal

exclusive control

relevant and
to give

noncumulative.

such an

with

Specifically, they argue

necessary because the

the government's
been

witness instruction

instruction

informant was a

whose testimony
We review
for an

the

abuse of

- 18 -

discretion.

See United States v. St. Michael's Credit Union, 880

___ _____________
__________________________

F.2d 579, 597 (1st Cir. 1989) (citations omitted).

"[T]he failure of a party to produce available evidence

that would help decide an issue may justify an inference that the
evidence

would be

unfavorable

to

the

party

to

whom

it

is

available or [to] whom it would ordinarily be expected to favor."

St. Michael's Credit Union, 880 F.2d at 597 (quoting 2 C. Wright,

__________________________
Federal Practice and Procedure
_______________________________
instruction is

489 (1982)).

A missing witness

appropriate when its proponent

demonstrates that

the absent witness

would have been

(1) "favorably disposed"

to

testify in the government's behalf, (2) "peculiarly available" to

the

government,

government.

or

(3)

United States
_____________

in

the

"exclusive

control"

v. Welch, 15 F.3d 1202,

_____

of

the

1214-15 (1st

Cir.), cert. denied, 114 S. Ct. 1863 (1994) (citing St. Michael's
____________
_____________
Credit Union, 880 F.2d at 597).
____________
missing witness
the

When deciding whether to issue a

instruction, the

witness could

judge should

provide "relevant,

consider whether

noncumulative testimony."

See United States

___ _____________

v. Ariza-Ibarra,
____________

651 F.2d 2,

16 (1st

cert. denied, 454

____________

U.S. 895 (1981); see also Welch,

________ _____

Cir.),

15 F.3d 1215

n.17.
In a similar situation,
refusal

we upheld the district court's

to issue a missing witness instruction with regard to an

undisclosed confidential

informant.

922 F.2d 914, 925 (1st Cir. 1991).

United States
_____________

v. Mart nez,
________

In Mart nez, the informer had

________
witnessed

prior drug

defendants

transactions

in the

were eventually arrested.

apartment where

the

However, we found that the

- 19 -

informer was a mere tipster because he was not present during the
drug

transaction

which

prosecution

and

thus

contradict,

or clear

"was

in

the
a

sole

Id. at 921.
___

instruction

basis

position

inconsistencies in

. . ."

missing witness

because,

not

up any

witnesses' testimony .
that

constituted

would

for

to

amplify,

the government

We then

concluded

have been

improper

as a mere tipster, the informant was unessential to the

defendant's

right

to

Specifically, we held that

fair

trial.

Id.
___

at

921,

where "a defendant's right to

trial is not jeopardized by the government's refusal to

its informant's
never
_____

the

give rise

informant's

identity, the
to

testimony

a negative
would

exercise of that
inference
have

been

925.

a fair

disclose

prerogative can

suggesting that
unfavorable."

the

Id.
___

(emphasis added).

We further noted that an adverse inference was

especially

unjustified when

reveal the

identity of

the

government's

decision not

its confidential informant

to

was prompted

only by its "concern for the informant's safety and anonymity . .

. ."

Id.
___
We

find

controlling here.

the reasoning

of

the Mart nez

________

court

to be

As we concluded above, the informer was a mere

tipster whose absence did not jeopardize Lewis' and Starks' right
to a fair trial.
witness

Per Mart nez, this conclusion renders a missing

________

instruction

violent background

inappropriate.

given

the

of Lewis -- three prior convictions for armed

robbery --the government's concern

justified.

Furthermore,

Moreover,

for the informer's safety was

as in Mart nez, Starks used

________

his summation

- 20 -

to

argue

an

adverse

confidential informant.
court did not abuse its

inference
Id.
___

from

the

Thus, we find

absence
that the

of

the

district

discretion when it refused to issue

the

missing witness instruction.

V.
V.
Lewis

Cross-examination of Officer Noone

Cross-examination of Officer Noone
and

Starks

claim

that

the

improperly limited their cross-examination

an

expert

witness for

the

as

well

as the

cocaine.

use

Lewis

of

and

improperly refused

alleged

claim

to allow them to

regarding the correct

that

investigation.

they

the

crack

district

court

cross-examine Officer Noone

were the

They claim

procedures

and prosecuting a narcotics

Through this cross-examination, Lewis

show that

offered

dealers of

and preferable law-enforcement

to be used when investigating

to

Officer Noone

As

and value of crack cocaine,

weapons by

Starks

court

of Officer Noone.

government,

testimony regarding the distribution

district

case.

and Starks were attempting

victims of

that they were

sloppy and

botched

prejudiced by

these

allegedly improper limits because "the jury was unable to realize

the numerous police errors that permeated this case . . . ."
We

review

a district

court's

limitations on

cross-

examination for an abuse of discretion.

United States v. Twomey,

_____________
______

806 F.2d 1136, 1139-40 (1st Cir. 1986).

"A defendant's right to

cross-examine
Alford
______

is fundamental

and

of great

respect,

v. United States, 282 U.S. 687, 691-92 (1931); however, a

_____________

trial judge retains wide latitude to

order

demanding

impose reasonable limits in

to avoid prejudice to a party or confusion of the issues."

- 21 -

Twomey, 806 F.2d

______

at 1139

(citing Delaware v.
________

Van Arsdall,
___________

475

U.S. 673, 679 (1986)).

The district court gave
to

impeach

Officer

Noone's

general investigatory
Lewis' and
elicit
outside

Starks'

Lewis and Starks wide latitude

credibility

procedures.

The

cross-examination

testimony on

matters that

with questions

court, however,
when

were

they

about

limited

attempted

to

cumulative, irrelevant,

the scope of direct, or outside Officer Noone's personal

knowledge and expertise.

For

instance, Officer

surveillance and
and Starks.
excluded

investigation that led

Thus,

the court was

questions

present case.2

Noone was

The

on the

not involved

to the arrest

in the

of Lewis

within its discretion when

actual

procedures

court also acted within its

involved in

it

the

discretion when

it excluded a question concerning whether it is preferable to use

controlled drug buys and
a defendant of

being a

knowledge of various
been relevant to

electronic surveillance before accusing

drug dealer.

Although Officer

police procedures or lack

impeach his credibility

the district court had

Noone's

thereof may have

as an expert

witness,

already given the defendants considerable

latitude to accomplish this.

Thus, because these procedures were

not used in this case, this hypothetical was too far removed from
the facts

at hand.

The court

likely decided to

cut off

this

____________________

2
These questions included whether
the police had made
controlled drug buys or had used electronic surveillance during
the investigation and how Starks was dressed when he was
arrested.
- 22 -

speculative

line of

questioning

relevant and because the defense

ask
could

Officer Noone

about

have used in this

because it

was so

marginally

counsel could have proceeded to

dozens of

procedures that

the police

case, leading to interminable unrelated

speculation and confusion.

We have

carefully reviewed

Lewis'

and Starks'

specific contentions and find them similarly meritless.

other

- 23 -

VI.
VI.
A.
A.

Prosecutorial misconduct
Prosecutorial misconduct

Comment on the "frame-up" theory

Comment on the "frame-up" theory

Lewis and Starks assert that

commented

on their failure to

alleged "frame
Whether the
novo;

reviewed
810

produce any evidence regarding an

up" orchestrated by

prosecutor's comments

whether the

F.2d 316,

the confidential

any, demands

discretion.

320 n.2 (1st

informant.

were improper is

misconduct, if

for an abuse of

the government improperly

reviewed de

a new

trial is

United States v. Glantz,

______________
______

Cir.), cert. denied, 482

_____________

U.S. 929

(1987).
Though
comment

it

is

axiomatic

on a defendant's failure

California,
__________
entitled,

380

U.S.

609,

that

the government

to take the

615

(1965),

stand, Griffin v.
_______

"the

government

evidence supporting

Glantz,
______

810 F.2d at 321

that the defendant

the

defense theory

(citing United States

_____________

F.2d 83, 87 (1st Cir. 1981)).

of the

earned legal

In Glantz, the prosecutor remarked

______

had failed to produce

fees.

arguments

Glantz, 810
______

were not

records supporting its

F.2d at 320-24.

such that

jury would

necessarily

take them to be

to testify.

Rather, the arguments highlighted

absence

theory

--

case."

v. Savarese, 649
________

contention that the alleged kickbacks were actually

defense's

is

to some extent, to comment on a defendant's failure to

produce

the

cannot

legitimately

We found that

naturally and

comments on the defendant's failure

the primary

weakness

weaknesses in the
was,

of business records supporting this theory.

in

fact, the

Id. at 322___

23.

Having put forth

a theory in

defense, a defendant

cannot

- 24 -

expect

the

government

deficiencies.

to

refrain

from

commenting

on

its

See id. at 321.

___ ___

Here,

Lewis

and

improperly commented on

Starks

the

government

the lack of evidence suggesting that the

informer had framed Lewis and

in the parking lot.

assert that

Starks by planting the

contraband

In closing, the government argued:

Now, you heard at the beginning of this

case, the very beginning of this case
. . .
that
somebody
framed
these
defendants.
That's what was stated to
you.
Somebody framed the defendants.
Now, what are you hearing?
You're
hearing, well -- first of all, what
evidence has there been on that?
None.
What evidence has come to you wherein you
would say, "Yeah, I think they were
framed?"
Lewis

and Starks contend that

on their failure to testify.

raised

the

possibility

this was an impermissible comment

We disagree.

that

they

had

confidential informant.

Starks raised the

his opening

Though Lewis never

statement.

Both Lewis and Starks

been

framed

by

"set up" defense

the

in

explicitly asserted

it,

he insinuated

planted

that

the contraband.3

the confidential
Lewis

informant had

and Starks failed

indeed

to offer any

evidence whatsoever that would even remotely support this theory.

Given

this, we believe the government's

permissible

comment

on

the

weakness of

closing statement was a

the

frame-up

theory

____________________

3
This insinuation is most clear in Lewis' cross-examination of
Officer Leedberg.
When Officer Leedberg
stated that he
frequently searches informants prior to a "controlled buy,"
Lewis' counsel asked, "And that's to make sure that the person
that you're dealing with
[the informant] is not planting
contraband on the people you're going to arrest, is that right,
sir?"
- 25 -

alleged

by

misconduct.

the defense

and

did

not constitute

prosecutorial

- 26 -

B.
B.

The "paid informant" issue

The "paid informant" issue

Starks

contends

his

counsel's

undermined

that

the

government

credibility

when

improperly

the

government

demonstrated at trial that the informant was not a paid informant

after the government had previously represented to Starks that he

was a paid informant.

In a pretrial conference,

the government

stated that it "believe[d] . . . the Brockton Police

the

confidential

informant

informant; that on
there and he
Starks

as

paid,

working

him a few bucks

here and

provides . . . information to the Brockton Police."

his

his trial

demonstrate

that

for

officers that

on

this statement

Apparently, Starks

informant

had a

the police.

undermined his

trial strategy,

counsel relied

strategy.

the

"produce" criminals
government

up

occasion they give

asserts that

preparing

signed

do not have

monetary

when it elicited testimony

these officers

intended to
incentive

Starks claims

credibility and,

in

that

indeed, his

to

the

entire

from Brockton Police

had never paid

the informant

and

that they were not aware that any other law enforcement personnel
had made such payments.
As a preliminary matter, we

note that Starks failed to

raise this objection at trial in a specific and timely manner; he

neither objected nor moved for a mistrial or new trial -- rather,

he

merely raised some

Consequently,

vague concerns

in a

we must review for plain error.

sidebar conference.

Fed. R. Crim. P.

52(b); see also United States v. Romero, 1994 WL 456857, *10 (1st
________ _____________
______
Cir.).

- 27 -

We
"error,"

will find

(2) that is "clear"

"substantial rights."
1776-77 (1993);
Cir.

1993).

error.
his

plain error

In

claim that

or "obvious" and

this case, there

Ct. 1770,

Zannino,
_______

a fair trial.

895 F.2d

Consequently, per

1,

17 (1st

Starks'

contends that his

it waived.

Cir.),

cert.
_____

in the most skeletal

do the counsel's work, create

argument, and put flesh

more importantly,

which supports

As we have previously noted, "[i]t

to mention an argument

leaving the court to

much less plain

we are tempted to deem

denied, 494 U.S. 1082 (1990).

______

While Starks

is no error,

to express any legal theory

he was denied

United States v.
______________

and

is an

(3) that affects

United States v. Olano, 113 S.

______________
_____

standard appellate procedure,

for the

(1) there

United States v. Col n-Pag n, 1 F.3d 80, 81 (1st

_____________
___________

Starks fails

is not enough

only when

on its bones."
argument

is

the informant by demonstrating that he

the ossature
Id.
___

factually

trial strategy was

way,

Moreover,

infirm.

to discredit

had a monetary incentive,

he neglected
of all
this

to pursue this theory

the police officers

undermine

strategy, it

who took the

contention

also demonstrates

statements might
stated that

Starks'

have been

Brockton Police

few bucks here and there."

of questioning

during his cross-examination

that

that

stand.

Not

this

only does

was

his

the government's

factually accurate.

trial

pretrial

The government

occasionally gave the

informant "a

Thus, by failing to explore this line

thoroughly, Starks

did not demonstrate

that the

- 28 -

government's pretrial statement

find that

Starks has

was indeed false.4

asserted no

factual or

In sum,

we

legal proposition

that satisfies the plain error standard.

VII.
VII.
Lewis
improperly

and

Admission of the photographs

Admission of the photographs
Starks

assert

that

the

district

court

admitted an "unduly suggestive array of photographs."

Over objection, the court admitted a

folder consisting of Lewis'

and Starks' booking photographs

the

guns and

contend,

and

stapled alongside photographs of

cocaine discovered
with

some merit,

near them.
we

think,

photographs was unfairly prejudicial

yet unproven

Lewis
that

and Starks

the array

of

because it suggested an as-

connection between them

and the contraband.

That

is, the arrays depicted the ultimate legal conclusion, that Lewis
and

Starks

possessed

cocaine

and

firearms,

that

was

the

government's burden to prove.

Evidence is relevant
the

existence

of

determination of the

any

fact

if it has
that

is

"any tendency to

make

consequence

the

of

action more probable or

it would be without the evidence."

evidence is generally admissible.

value

substantially

prejudice . . . ."

401.

Fed. R. Evid. 402.

exclude otherwise relevant evidence

is

less probable than

Fed. R. Evid.

judge may

outweighed

Fed. R. Evid. 403.

by

the

to

Relevant

However, a

if "its probative
danger

of

unfair

We review a trial court's

____________________

4 Moreover, we note that this was merely a statement of belief

by the government. Starks never stated that he intended to rely
on it; further, he did not attempt to confirm it with pretrial
discovery.
In short, Starks did very little to shore up what he
claims was his primary trial strategy.
- 29 -

Rule

401/403 balancing test for an abuse of discretion, and only

in "extraordinarily

compelling circumstances" will we

district court's "on-the-spot

judgment" concerning the probative

value and unfair effect of the proffered evidence.

v.

Rodr guez-Estrada,
_________________

While

we are

877 F.2d

concerned with

153,

155-56

presented

by the

United States
_____________

(1st Cir.

the government's trial

find that the error, if any, was harmless in light

case

reverse a

government.5

1989).

tactic, we

of the strong

United States v.
______________

Ruiz_____

Batista, 956 F.2d 351, 352-53 & n.2 (1st Cir.), cert. denied, 113
_______
____________
S. Ct. 105

(1992) (noting that

reversal is inappropriate

where

other evidence of guilt renders an evidentiary error harmless).

Here,

the

photos

condition of the evidence

were

relevant.

when it was recovered.

not conclude whether the danger of unfair

the
value

photographic array
because

substantially

the error,

if any,

in

ultimately harmless.

The

Lewis

the contraband.

and Starks

to

concluded that

the

contraband.

Further, the

____________________

the

However, we do

outweighed its

probative

admitting the

array was

prematurely connected
However, the

Thus, it

Lewis and Starks possessed

because their photographs were

show

prejudice presented by

array may have

informed of how the array was compiled.

They

jury

was

could not have

the contraband simply

stapled alongside photographs

government eventually

of

presented

5 We think that prosecutors ought to bear in mind that where, as

here, the government has a strong case, such arguably prejudicial
tactics do not help the government but do create the risk that
sufficiently egregious conduct
will constitute grounds for
reversal.
Conversely, where the case is a close one, error will
not be deemed harmless and the conviction will be reversed.
- 30 -

overwhelming evidence to connect Lewis and Starks to the guns and

cocaine

depicted in the array.

alongside

the

contraband.
before the

vehicles
Moreover,

arrest,

he

Lewis and

under

which

Officer Smith
saw both

Starks were standing

the

police

testified

found

that,

Lewis and Starks

the

moments

make furtive

movements

as if they were attempting to hide something under the

vehicles.

Consequently, we do not find any reversible error.

VIII.
VIII.

Failure to produce exculpatory evidence

Failure to produce exculpatory evidence

Lewis

and

Starks

contend that

the

Brockton

Police

Department mishandled their case in so severe a fashion that they

were denied a

fair trial.

Specifically, they

allege (1)

that

they were denied access to possibly exculpatory evidence when the

Brockton

Police erased

their arrest, (2) that

audio

tapes of

the events

surrounding

they were denied an opportunity

to prove

their frame-up theory when the Brockton Police delayed submitting

the

contraband for

fingerprinting,

and (3)

that the

Brockton

Police colluded to produce a false and inaccurate police report.

A
request

defendant has

and receive

possession.
recently

an established

all material

Brady v.
_____

evidence in

Maryland, 373
________

discussed

the

due process

U.S. 83,

framework

of

constitutionally guaranteed access to evidence.

Femia, 9 F.3d 990,
_____
"the

difficulty

destroyed

993 (1st Cir. 1993).

of

through

developing

rules

prosecutorial

right to

the government's
87

(1963).

We

defendant's

United States v.
_____________

This framework reflects

to

deal

neglect

with
or

evidence

oversight."

- 31 -

California
__________

v. Trombetta,
_________

467 U.S. 479,

486 (1984).

"Whenever

potentially exculpatory evidence is permanently lost, courts face

the treacherous
contents

task of divining

are unknown

and,

very

the import of
often,

materials whose

disputed."

Id.
___

defendant

who

seeks

to

government's possession
in bad faith

when it

suppress

must show that (1)

in

the

the government acted

(2) the

evidence

value before it was destroyed,

missing evidence is, to

Femia, 9 F.3d at
_____

formerly

destroyed the evidence,

possessed an apparent exculpatory

and (3) the

evidence

some extent, irreplaceable.

993-94; Trombetta, 467 U.S. at

_________

v. Youngblood, 488 U.S. 51, 58 (1988).

__________

488-89; Arizona
_______

As we noted in Femia, the

_____

dispositive factor is often whether the defendant can demonstrate

that the government acted in bad faith.
The

Internal

Affairs

records all radio transmissions

tapes

of the

Lewis and
these

Starks had a

police.
audio

the

routine

Brockton Police

made from police vehicles.

the officers

The

involved with

chance to review
Officer
procedures

them.

Leedberg
followed

With

regard to

offered

testimony

by

the

Brockton

Generally, the Brockton Police Department only preserves

tapes of radio communications for one or two months before

recording over them

such as murder.
trial

the

were subsequently recorded over before

surveillance tapes,

concerning

Office of

transmissions between

Lewis' and Starks' arrest

Femia, 9 F.3d at 994.

_____

court

unless the

tapes pertain to

Lewis and Starks proffered

that would

even remotely

a major

no evidence to

suggest that

crime

the

the police

acted in bad faith when they reused the audio tapes in accordance
- 32 -

with their established routine.

Lewis and
made

Starks also assert that

a crucial error when they

allegedly delayed submitting the

contraband for fingerprint analysis.

fail to
the

allege any

the Brockton police

Lewis and Starks, however,

governmental conduct that

alleged delay

was

due to

bad faith

demonstrates that

rather than

a normal

error.

Moreover, they do not make a colorable argument that the

alleged

delay destroyed

evidence with

value.

Starks

that the

asserts

opportunity to
confidential

prove his
informer's

an apparent

alleged

frame-up

delay cost

theory by

fingerprints

exculpatory

were

on

him

the

showing that

the

the contraband.

However, as we discussed in part III, there was ample evidence to

refute

and

none to

support

the theory

that

the confidential

the

Brockton

informer framed Lewis and Starks.

Finally,

Starks

colluded to produce

a false

support of this,

he points

report.

First,

the

Officer

Leedberg

claims

that

and inaccurate police

to two alleged

report states

conversed with

that

the

Police

report.

In

inaccuracies in

the

on August

informer in

15,
person.

1992,

At

trial, Officer Leedberg testified that this conversation occurred

by telephone.
with

Second, Starks states the police

the trial testimony regarding

report conflicts

whether the guns and cocaine

were found under two

found

under

the

separate vehicles or whether they

brown

Buick.

Starks,

however,

were all
fails

to

demonstrate that these alleged factual inaccuracies resulted from

bad

faith.

He merely

states that

"these errors

poisoned the

- 33 -

judicial process"
cannot agree.
minor

and thus constitute grounds for

No police investigation is

inconsistencies do

Brockton

not

Police used bad faith

reversal.

We

entirely perfect, and

support his

contention that

and colluded to

the

produce a false

and inaccurate police report.

Thus, we

find no reversible error

in the government's

alleged mishandling of the evidence.

IX.
IX.
Lewis

The government's peremptory challenge

The government's peremptory challenge
and

Starks

contend

that

the

government's

peremptory challenge of a black juror was racially motivated and,

consequently,
Clause
that

violated their rights

under the

of the United States Constitution.

Equal Protection

Starks also contends

the court further erred in refusing his request to question

the juror on his ability to render an impartial verdict.

In Batson,
______
process to

by

an

Kentucky, 476 U.S. 79,

________

"the

impermissible
96-98 (1986).

prima facie showing

_____ _____

clear this

Court delineated

determine whether the government's

was motivated

make a

the Supreme

initial hurdle,

prosecutor has

of racial

racial

a three-step

peremptory strike
bias.

First, the

Batson
______

v.

defendant must

discrimination.

Id.
___

To

the defendant

must first

show that

exercised peremptory

challenges

to remove

from the venire members of the defendant's race."

Id.
___

the defendant is entitled to rely on the

fact . . . that peremptory challenges
constitute a jury practice that permits
"those to discriminate who are of a mind
to discriminate." Avery v. Georgia, 345
_____
_______
U.S. 559, 562 (1953).
Finally, the
defendant must show that these facts and
any other relevant circumstances raise an
- 34 -

inference that the prosecutor used that

practice to exclude the veniremen . . .
on account
of
their race.
This
combination of factors in the empaneling

Second,

of the petit jury . . .

necessary
inference
of
discrimination.
Id. at
___

96.

determine

The

court should

whether the

facie showing.

the

defendant

defendant

prosecutor

explanation

consider all relevant

has made

factors to

the requisite

prima

Id. at 96-97.
___

Once the
hurdle,

raises the
purposeful

for

must

striking the

prosecutor's explanation

successfully clears
then

articulate

juror

need not

exercise of a challenge for cause."

in

this
a

initial

race-neutral

question, though

"the

rise to the

level justifying

Id. at 97.
___

The trial court

then must decide whether the defendant has established purposeful

discrimination.
In

Id.
___

the

case at

Starks have

alleged facts

prima facie
___________

case.

prosecutor's

bar, we

are

dubious that

necessary to establish

Regardless

of this, we are

race-neutral explanation

Lewis and

the requisite

certain that the

negates any

inference of

purposeful discrimination.
As to
black jurors.

the first issue,

trial despite

peremptory

peremptory challenges.
the fact

that the

challenges remaining.

Starks removed one

the

court to

with three

The government and Starks each excused one of the

black jurors with

for

the venire started

black juror and

empanel the

The third was selected

government still

In light

of

the fact

that the government

third black

juror, we

had two

that

allowed

doubt whether

- 35 -

Lewis

and

Starks have

necessary prima facie

____________
See
___

Chakouian
_________

v.

(holding that

alleged

inference of

Moran, 975
_____

defendant failed

absent any evidence as

called and seated as

that

the

explanation

for the

court

it

that

purposeful

F.2d

931,

934

to

(1st Cir.

articulated

challenged the

1992)

to demonstrate prima facie case

____________

jurors).

challenge.

raise the

discrimination.

to whether other black members

were

prosecutor

facts sufficient

Regardless,
a

we are certain

satisfactory

The

of venire

race-neutral

prosecution informed

juror

because

he

worked as

the

security guard at Straughter Security, a firm which the Bureau of

Alcohol, Tobacco and Firearms ("ATF") was
for possible

firearms offenses.

The

actively investigating

ATF investigation entailed

an "active federal presence" at the company as well as grand jury

testimony by certain security guards.
the government

was rightfully concerned that

may harbor certain

employer

Under these circumstances,

and was

hostilities due to
entitled to

question

the security guard

the investigation of
the juror's

his

ability to

render

an

impartial verdict.

peremptory challenge
government's
well within

Consequently,

was permissible.

Further, in

satisfactory explanation, the

its discretion when

the use

of

the

light of the

district court acted

it refused

Starks' request

to

continue questioning the juror.

X.
X.

Refusal to stipulate that defendants were felons

Refusal to stipulate that defendants were felons

The government charged both Lewis and Starks with being

a

felon-in-possession
922(g)(1).

of a

firearm in

violation of

18 U.S.C.

To prove this charge, the government must show that

- 36 -

(1)

the

defendant

was

requiring imprisonment

previously
exceeding one

convicted

of

year and (2)

an

he knowingly

possessed a firearm in or affecting interstate commerce.

States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992).
______
_____
three

prior

convictions

for

armed

robbery

and

offense

United
______

Lewis had
offered

to

stipulate that he was a felon to satisfy the first element of the

statute, presumably to keep the nature of his prior felonies from

the

jury.

Starks

had

prior

state

court

conviction

for

possession

of cocaine

similar offer

with

to stipulate

court did not require

intent to

distribute,

that he was

a felon.

and made

The district

the government to accept either

Lewis' or

Starks' proposed stipulation but rather allowed the government to

introduce evidence of the nature of Starks' conviction and one of

Lewis' convictions.

The government then

copy of Starks' prior

intent
robbery

to

masked."

convictions briefly
court

conviction for possession of cocaine

distribute and

while

prevented

introduced a certified

Though

in its
the

Lewis'

prior
the

conviction for

"armed

government mentioned

opening and closing

government

with

from

the

statements, the

introducing

evidence

concerning the facts surrounding the convictions.

Lewis
decisions in

and Starks contend that, in

Tavares and Melvin, the

_______
______

light of our recent

district court erroneously

refused to accept their offers to stipulate that they were felons

under the statute.

United States v. Tavares, 21 F.3d 1 (1st Cir.

_____________
_______

1994)(en

banc); United States v.

_____________

1994).

They

further

Melvin, 27 F.3d
______

contend that
- 37 -

this

refusal

703 (1st Cir.

constitutes

reversible

error.

contention but

We

agree

find the

with

error to

Lewis'

and

be harmless

Starks' first

in light of

the

overwhelming evidence of guilt.

Before Tavares, the
_______
offer to stipulate,

was allowed

felony necessary to prove

Collamore, 868
_________

offer to

issue

to "present evidence on the one

the crime charged."

F.2d 24, 28 (1st

rubric that the

the

government, even in the face of an

Cir. 1989).

United States v.
______________
It

was under this

district court allowed the government

stipulate.

However, we

to reject

recently revisited

this

and determined that when a defendant is charged with being

a felon-in-possession of a firearm, evidence of the nature of the

prior conviction
establish

is not admissible

that the

relevance of

compelling to survive the

unless special circumstances

the evidence

is "sufficiently

balancing test of Fed. R.

Evid. 403."

Tavares, 21 F.3d at 5; Melvin, 27 F.3d at 707.6

_______
______
In light of the
does not present the
from the

record

as

announced in

error was harmless.

a

evidence on the
States
______

"unusual circumstances" necessary to depart

general rule

whether the

government's concession that this case

whole to
jury."

determine
Melvin, 27
______

v. Spinosa, 982 F.2d

_______

Tavares, we
_______

To do so, we
the

probable

F.3d at 708

620, 630 (1st

must determine

"must assess the

impact of

the

(quoting United
______

Cir. 1992) (citation

omitted)).

As we discussed in part VII, the government presented

overwhelming

and essentially

uncontradicted evidence

of Lewis'

____________________
6

Because

we decided Tavares while the present case was still

_______
pending on direct review, we apply it here. Melvin, 27 F.3d at
______
706 n.4.
- 38 -

and Starks' guilt.

proverbial
cocaine

"smoking gun."

moments after

discard the

felony.

of this

erroneous

The

witnessing

contraband under

conclusiveness
court's

Lewis and Starks

police recovered
Lewis and

cars parked

evidence

admission

were both caught with

of

the guns

Starks attempt

alongside them.

renders harmless
the nature

of

the

and

to

The

the district
the

predicate

- 39 -

XI.
XI.
A.
A.

The length of the sentences

The length of the sentences

Base offense level

Base offense level

Lewis

and

Starks

contend

that

the

district

court

improperly aggregated the controlled substances that were held by

them individually when the
offense level ("BOL").
The

29, 31

plus

Id.
___

factor

Cir. 1993).

prove the
This

jointly undertaken
was

by a

conduct."

criminal activity

reasonably

foreseeable

furtherance

of the

acts

jointly

and

v.

the

charged conduct

Id.
___

In the

conduct

the sound discretion of

of whether

of

error when it found

aggregated
They

are

wrong.

U.S.S.G.

guidelines is a

764 (1st

Cir. 1991).

Investigation
decision

Report

evidence,

("PSR"),

Id.
___

that the court committed clear

of cocaine

The

in

the district court.

that they acted in concert

the amount

"all

others

Thus, we will only reverse on a finding of clear error.

Lewis and Starks assert

case of

includes

omissions

F.2d 753,

v. Reyes, 3
_____

preponderance of

undertaken activity."

Osorio, 929
________

the

the

(regardless

relevant

under

purposes,

Determining quantity under the

matter entrusted to
United States
_____________

For sentencing

quantity is the sum of the

charged),

1B1.3(a)(1)(B).

sentencing

United States
_____________

quantity

the defendant's "relevant

conspiracy

for

quantity of drugs.

(1st

government must
evidence.

This contention is erroneous.

determinative

guidelines is the
F.3d

court determined the appropriate base

that each
especially

supports

the

and consequently

held individually.
the

Presentence

district

court's

that Lewis and Starks were engaged in a joint activity.

- 40 -

Lewis

and Starks

were together

consecutive nights.
loaded

handguns

crack cocaine.

defendant

containers of

for two

identically wrapped

contraband under parked cars.

Moreover, Starks

diversion by waiving his arms,

more time to

support a finding
activity such

Mary's Bar

When the police approached, Lewis and Starks both

attempted to create a
give Lewis

Pete &

On the second night, they both brought along

and similar

discarded their

to

at

stash his contraband.

These facts

that Lewis and Starks were engaged

that the court

the cocaine

held by

presumably

in a joint

could correctly attribute

the other

under the

to each

heading of

relevant conduct.
B.
B.

Starks' Criminal History Category

Starks' Criminal History Category

Starks also
errors when

contends that the district

it calculated his criminal

his exposure under

the guidelines.

because
sixty

history, thus increasing

He first

court improperly assessed two points for

court made two

asserts that

the

a prior drug conviction

he served less than the guideline minimum prison term of

days.

Next, he

his "admission to

argues that the

sufficient facts"

court improperly counted

for a battery

on a

police

officer.
because

He

contends that

no finding

scoring this

of guilt

was

charge was

ever made

and

erroneous

the case

was

ultimately dismissed.
We employ

a dichotomous

court's application of the

process to review

sentencing guidelines.

v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).

_______
the

scope

of a

guideline provision

a district

United States
_____________

First, we examine

de novo.
________

Id. (citations
___

- 41 -

omitted).

Once we have determined whether the relevant guideline

provision

applies, we

clear error.

review the

factfinding process

only for

Id.
___

To determine a sentence under the guidelines, the court

must first
This

calculate the defendant's

system is

behavior

will

recurrence."
On

based

on the

aggravate
U.S.S.G.
a prior

the

criminal history category.

premise
need

that "repeated

for

punishment

criminal
with

each

4, intro. comment.
drug conviction,

Starks was

sentenced to

serve five months in a House of Correction.

sentence

was stayed while he

appealed.

The execution of his

The

court then granted

him credit for 39 days served and released him on parole.

asserts that the district
history
the

points for this

sixty day

disagree.

sentence

Starks

court improperly assessed two criminal

conviction because he
specified

The guidelines instruct

in

the

served less than

guidelines.

the court to

We

add two points

for "each prior sentence of imprisonment of at least sixty days .

________________________
. .

."

U.S.S.G.

notes clarify
history
length

4A1.1(b) (emphasis added).

any possible

points are
of time

ambiguity by stating

based on

actually

The application

the sentence

served."

that "criminal

pronounced, not

U.S.S.G.

4A1.2, comment.

(n.2); see also United States v. Priest, 6 F.3d 1201,

________ ______________
______
Cir.

the

1215 (7th

1993); United States v. Shinners, 892 F.2d 742, 743-44 (8th

_____________
________

Cir. 1989); United States v. Altman, 901 F.2d 1161, 1166 (2d Cir.
_____________
______
1990).
over the

Here, the court had sentenced Starks to five months, well

sixty day minimum in the guidelines.
- 42 -

Thus, we find the

district court's assessment oftwo criminal history points proper.

We

will now turn to the second issue.

Starks contends

that the district court should not have counted his "admission to
sufficient facts"

because it was not

that involved a judicial

in open

court.7

decision

decline to rule

district

on this issue

court assessed

history points,

U.S.S.G. ch. 5
needs

finding of guilt or admission

of guilt

because our

cannot effect the length of Starks' sentence.

The

criminal

We

a diversionary disposition

pt. A.

placing him

To

Starks

in category

achieve a sentence

total of

six

three.

See
___

reduction, Starks

to shed three points from his criminal history score; this

would drop him down to category 2.

assessed

one point

for

Id.
___

The district court only

this "admission

Thus, even if the assessment

to sufficient

facts."

were improper, Starks would

remain

in category three, and his sentence would remain unchanged.

XII.
XII.
A.
A.

Lewis' challenges to his sentence

Lewis' challenges to his sentence

Lewis' Equal Protection challenge

Lewis' Equal Protection challenge

Lewis contends that

distinction
violates

the

between
Equal

the Federal Sentencing Guidelines'

the "crack"

and

powder

Protection

Clause

of

forms of
the

United

cocaine

States

____________________

7
Diversionary dispositions
resulting from a finding or
admission of guilt are counted as sentences under the guidelines
even if a conviction is not formally entered.
U.S.S.G.
4A1.2(f).
"Section 4A1.2(f) requires counting prior adult
diversionary
dispositions
if
they
involved
a
judicial

determination of guilt or an admission of guilt in open court.

This reflects a policy that defendants who receive the benefit of
a rehabilitative sentence and continue to commit crimes should
not be treated with further leniency." U.S.S.G.
4A1.2 comment.
(n.9).
- 43 -

Constitution.

Specifically,

though facially

he asserts

that the

neutral, triggers heightened scrutiny

Feeney test because it has both a racially

______
and intent.

distinction,

under the

discriminatory impact

Personnel Administrator of Mass. v. Feeney, 442 U.S.

________________________________
______

256, 272 (1979).

Alternatively, he contends that the distinction

fails rational basis scrutiny.

We recently addressed this

issue and, like every other

circuit that has done so, found the distinction in the guidelines
between crack
See
___

cocaine and

United States
_____________

1994).

powder cocaine to

v. Singleterry,
___________

In Singleterry, we
___________

29 F.3d

be constitutional.
733, 739

found the distinction

strict scrutiny because there

(1st Cir.

did not merit

was insufficient evidence that the

distinction "was motivated by any racial animus or discriminatory

intent

on

the

part

of

either

Congress

or

the

Sentencing

Commission."
F.2d 92,
The

Id. at 741. (quoting United States v. Frazier, 981

___
_____________
_______

95 (3d Cir.),

distinction

"Congress

cert. denied,
____________

also survived

had before

trafficking
itself."
at 95).

in

rational basis

it sufficient

distinctions that would justify

or using

113 S. Ct.

. .

1661 (1993)).

analysis because

. information

. . . more severe

cocaine

base

to make

sentences for

or crack

than

cocaine

Singleterry, 29 F.3d at 740 (quoting Frazier, 981 F.2d

___________
_______
Accordingly, this challenge fails.
B.
B.

Lewis' selective prosecution claim

Lewis' selective prosecution claim

Lewis asserts

that the government adopted

federal court solely because

of his racial status.

his case to

In essence,

he claims that he was selectively prosecuted because he is black.

- 44 -

A
defendant
"intentional

selective
establishes

prosecution
that

his

claim

fails

prosecution

and purposeful discrimination."

unless
results

United

the

from

States v.

______________

Bassford, 812 F.2d 16, 19 (1st Cir.), cert. denied, 481 U.S. 1022
________
____________
(1987).

This requires that the defendant demonstrate, "at least

prima facie, (1) that,

___________
generally been proceeded

while others similarly situated

have not

against because of conduct of

the type

forming the basis of the charge against him, he has

been singled

out for prosecution, and (2) that the government's discriminatory

selection of him for

prosecution has been invidious or

bad faith, i.e., based

race . .

. ."

Id.
___

based in

upon such impermissible considerations as

(quoting United States v.

_____________

Berr os, 501 F.2d

_______

1207, 1211 (2d Cir. 1974)).

Lewis

has failed

to proffer

any factual

allegations

that would substantiate his selective prosecution claim.

Lewis merely
case

points out

to federal

sentence.

court

Lewis

has

that the government's

greatly increased
not demonstrated

situated, were not proceeded

for

impermissible

prosecution

in

reasons.

both federal

adoption of

his potential
that others,

against or that he was

Lewis' crimes
and

state

Rather,

prison

similarly

singled out

subjected

court.

his

The

him

to

federal

government chose to prosecute him; we cannot conclude that he was

selectively

prosecuted solely

because

he was

only charged

federal court.
C.
C.

Lewis' request for downward departure

Lewis' request for downward departure
- 45 -

in

Lewis argues that

of his case entitle
specified

the allegedly unusual

him to a downward

in the guidelines.

district court's

circumstances

departure from the

We lack jurisdiction

refusal to depart downward

range

to review a

from the sentencing

range so long as the district court was aware of its authority to

order

such a departure.

571-72

(1st Cir. 1993) (citing United States v. Lauzon, 938 F.2d

_____________
______

326, 330
area

United States v. Lombardi, 5 F.3d 568,

______________
________

(1st Cir.), cert. denied, 112 S. Ct. 450 (1991)).

____________

of the

law is

Castiello, 915 F.2d

_________

well

settled.

See id;
___ __

district

However,

it

is unclear

court concluded

that it

downward departure or simply

Consequently,

we

v.

1, 6 (1st Cir.), cert. denied, 498 U.S. 1068

____________

(1991); United States v. Tucker, 892

______________
______
1989).

United States
_____________

This

assume that

F.2d 8, 9 &

from

the record

lacked authority

n.2 (1st Cir.

whether
to

the

order a

refused to exercise its discretion.

the

district

court believed

it

lacked the power to depart from the guidelines and review whether
this assessment was accurate.

In
that

United States
_____________

often warrant

irrelevant to

v. Rivera,
______

departure, the

Lewis

downward

contends that

departure.

warranted because
forms

of

factors that

departure decisions, and those

in determining whether to depart.

1993).

we reviewed

First,

disparate impact.

that are forbidden

several factors
Lewis asserts

entitle him

to a

that departure

was

between the crack

the sentencing

He

are ordinarily

994 F.2d 942, 948-49 (1st Cir.

the distinction

cocaine in

the factors

guidelines has

also claims that

and powder

a racially

departure is

warranted

- 46 -

because of the

"discriminatory adoption of

court,"

alleged evidentiary errors

in

course

the

uneducated,
of

of

sullied by

Lewis'

not proper grounds

any prejudicial

misconduct -- thus,
departure.

trial,

young black man.

foundation for

this was

the

his case to

federal

and prosecutorial misconduct

and the

fact

that

he

is

an

We have already discussed the lack

discriminatory prosecution
for departure.

claim, so

The trial

evidentiary errors or

was not

prosecutorial

these allegations do not justify

As to the other factors asserted by Lewis,

a downward

they fall

into either

the discouraged or forbidden

the Rivera
______
refused

opinion.

Consequently, the

categories reviewed by

district court correctly

to order a downward departure

when it calculated Lewis'

sentence.
D.
D.

The "crime spree" contention

The "crime spree" contention

Lewis

asserts

determined that he was

924(e)(1), the
ACCA

provides

922(g)

-- being

defendant

has

4B1.4.
it

a felon in

The district

determined that

court

Criminal Act (the

enhanced punishment

three

district

erroneously

an Armed Career Criminal under

for

prior

drug offenses.

18 U.S.C.

court sentenced Lewis under the

his

three prior

satisfied its requirements.

armed robbery

Lewis contends

for

violent

Such

U.S.S.G.

ACCA after

convictions

that his three prior

not separate occurrences but,

- 47 -

-- if the

924(e)(1).

criminals.

The

18 U.S.C.

a firearm

convictions

armed career

18 U.S.C.

"ACCA").

violating

possession of

separate

are considered

convictions were

the

Armed Career

felonies or serious
defendants

that

rather, were all

part of a single, systematic course of conduct, or "crime spree,"

that

should only

count as

one offense

under the

ACCA.

Once

again, he is wrong.
Lewis
in July,

first robbed a gas station in March, then a cafe

and last a motel in August.

Gas, food, and lodging --

the connection would be apparent if the defendant were on a trip.

However,

the facts that Lewis

robbed these places

over a five-

month time frame and used different weapons in each robbery amply
support the
not

district court's

constitute a

single

Harris,
______

964 F.2d

battery

convictions

crime spree.

1234, 1237

drug

same

1992) (two

victim

but

for offenses at

consecutive days,

for which

v.

assault and

occurring two

v. Gillies, 851 F.2d 492,

_______

robbery convictions

stores on

crimes did

See United States

___ ______________

(1st Cir.

involving

months apart); United States

_____________
Cir.) (armed

determination that the

497 (1st

two different

defendant received

concurrent sentences), cert. denied, 112 S. Ct. 1694 (1992).

____________
XIII.
XIII.

Redaction of references to cocaine base

Redaction of references to cocaine base

Lewis

argues

refused his request to

indictment.
with
listed

that

the

21 U.S.C.

21

U.S.C.

court

erroneously

strike the words "cocaine base"

from the

841 makes it a federal crime to possess

an intent to distribute any

in

district

812.

of the "controlled substances"

Though

coca

leaves and

their

derivatives are listed as controlled substances, the term cocaine

base only appears in

the penalty provision of

21 U.S.C.

841.

Thus,

Lewis contends, at trial the term is irrelevant and highly

prejudicial surplusage

which should have been

stricken from the

- 48 -

indictment and, consequently, the

so precluded a fair trial.
Under
defendant
This

Federal

may move

serves

to

to protect

district court's failure to do

We cannot agree.
Rule of

Criminal

strike surplusage
the

defendant

Procedure
from the

7(d), the

indictment.

"against immaterial

or

irrelevant allegations in an indictment, . . . which may . . . be

prejudicial."

Fed.

United States v.
_____________
This

base

Fahey, 769
_____

decision rests

court.

R. Crim. P.

in

neither

F.2d 829, 841-42

the sound

Id. at 842 (citations

___
was

7(d), advisory committee

discretion

omitted).

irrelevant

(1st Cir.
of the

1985).

district

Here, the term

nor unfairly

note;

prejudicial.

cocaine

The

indictment served as notice to Lewis of the nature of the charges

against

him.

Indeed, identifying

the substance as cocaine base

was an essential element of the government's

Further,

though the

term crack

case against Lewis.

cocaine probably

carries heavy

social baggage, Lewis'

term

brief lacks

unfairly prejudiced
________

him.

We

any explanation
find this

of how

the

claim altogether

meritless.

We have considered the other claims of Lewis and Starks

and find them equally meritless.
Affirmed.
________

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