United States v. Meade

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

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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).

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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.").

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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).

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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

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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.

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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.

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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.

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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.

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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).

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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).

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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)).

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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).

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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.

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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.

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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.

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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").

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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").

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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

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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).

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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."

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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.

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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).

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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).

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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).

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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.

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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.

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