United States v. Junaid

United States Court of Appeals
For the First Circuit

No. 99-1872

UNITED STATES OF AMERICA,

Appellee,

v.

OLA BASHORUN, a/k/a TONY JOHNSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

Peter B. Krupp, with whom Lurie & Krupp, LLP was on brief
for appellant.
Theodore D. Chuang, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
August 28, 2000
 CYR, Senior Circuit Judge. While reserving the right

to appeal the district court ruling rejecting his pretrial

motion to suppress the fruits of a warrantless arrest, see Fed.

R. Crim. P. 11(a)(2), appellant Ola Bashorun entered conditional

guilty pleas to various criminal charges stemming from his

participation in a drug-distribution conspiracy. We now affirm

the district court ruling.

I

BACKGROUND

On November 7, 1997, United States Customs authorities

intercepted an Express Mail package containing concealed heroin

en route from Thailand and addressed to one “Keisha (sic)

Barrows” at 1019 Beacon Street, Apartment 43, in Brookline,

Massachusetts. Customs agents promptly contacted Timothy

Leighton, the landlord at 1019 Beacon Street, and learned that

a man named Tony Johnson — identified following his arrest as

Bashorun — had rented Apartment 43 continuously since January

1997. Leighton described Tony Johnson as a black man in his

thirties, with an accent, who drove a late model car and wore

expensive jewelry, but had no apparent means of employment.

Leighton stated that Tony Johnson had introduced him to a

friend, also named “Tony,” who lived in Cambridge [hereinafter:

“Tony from Cambridge,” identified following his arrest as

3
Bashorun’s codefendant Anthony Junaid], whom Leighton likewise

described as a black man, with an accent, who wore expensive

jewelry.

When Tony Johnson left Apartment 43 in September 1997,

Leighton allowed Johnson’s girlfriend, Keesha Barrows, to move

in for two weeks, followed by Felicia Brown (“Tony from

Cambridge”’s girlfriend) and her mother. Throughout this

period, Tony Johnson remained the only tenant of record and his

name continued to appear on the doorbell directory to Apartment

43. The apartment telephone number, however, had been listed

under such names as “Gubril Abediran” and “Tashema Beard,” but

never in Tony Johnson’s name. In addition, telephone company

records revealed that one Desmond Bartley, under investigation

by the United States Drug Enforcement Agency in Baltimore for

having received packages of heroin from a “Tony Johnson,” had

placed ten telephone calls to Apartment 43 during February and

March, 1997.

A. The Events of November 11

While the package addressed to “Keisha (sic) Barrows”

remained with customs authorities, it had been fitted with an

electronic monitoring device before being delivered to Apartment

43 on November 11, 1997. As U.S. Postal Inspector Nicole Gray,

posing as a postal carrier, entered 1019 Beacon Street,

4
undercover agents were maintaining surveillance from both inside

and outside the building. These agents observed that Inspector

Gray was being followed by a black male who kept looking at the

package Inspector Gray was carrying.

The landlord met the black male and promptly alerted

the surveillance agents that he recognized him as Tony Johnson’s

friend, “Tony from Cambridge.” This information was radioed to

agents outside the apartment building, who then observed the

black male (i.e., “Tony from Cambridge”) as he exited the

apartment building and entered a blue Dodge Caravan parked

immediately in front of the apartment building.

While “Tony from Cambridge” was still inside 1019

Beacon Street, customs agents stationed outside the building,

including Agents McGrath and Donald Lenzie, observed that

another black male, with a moustache, was using a pay phone on

the opposite side of Beacon Street. At about the same time,

Leighton received a phone call from Tony Johnson, who said he

would be dropping by the apartment later to pay the rent.

Surveillance agents watched the caller hang up the payphone,

cross Beacon Street, and enter the blue Dodge Caravan on the

passenger side.

The blue Dodge Caravan, tailed by agents, then

proceeded behind the Brookline post office building where

5
Inspector Gray had driven the postal truck after unsuccessfully

attempting to make the controlled delivery of the “Keisha (sic)

Barrows” package at 1019 Beacon Street. Massachusetts Bay

Transportation Authority Detective Peter Pasciucco continued to

tail the blue Caravan for an hour after it left the post office,

and at one point observed that one of the two black males was

using a cellular phone.

6
 Meantime, back at 1019 Beacon Street, Leighton made and

received a series of telephone calls. Fifteen minutes after the

blue Caravan left 1019 Beacon Street, “Tony from Cambridge”

called to learn the identities of the people who had been in the

lobby earlier (viz., the undercover surveillance agents).

Leighton told him they were electricians.

More than two hours later, at the direction of law

enforcement agents, Leighton called Tony Johnson’s cellular

phone and “Tony from Cambridge” answered. When Leighton told

him about the attempt to deliver the package to Apartment 43

earlier that morning, “Tony from Cambridge” repeatedly asked

Leighton to sign for the package the next time a delivery was

attempted, and advised Leighton that Tony Johnson would pick it

up later from Leighton. At this point, “Tony from Cambridge”

volunteered the information that Keesha Barrows owed Tony

Johnson money and that the package probably was a birthday gift

to Barrows. Leighton again refused to sign for the package.

Within the next half hour, Leighton received two

telephone calls from Tony Johnson, requesting that he sign for

the package and parroting “Tony from Cambridge”’s earlier phone

conversation with Leighton by stating that Keesha Barrows owed

Tony Johnson money and that the package must be a birthday gift

for Barrows. Leighton again refused to sign for the package

7
addressed to Barrows.

8
B. The Events of November 12

At 8:45 the following morning, agents spotted the same

blue Caravan parked near 1019 Beacon Street, and later near the

Brookline post office. At about the same time, the post office

received two anonymous telephone calls inquiring about the

package addressed to Barrows. When the blue Caravan left the

post office, the agents tailing it observed what appeared to be

evasive maneuvers, such as U-turns and driving against traffic

on one-way streets.

Shortly, Inspector Gray left the post office and drove

to 1019 Beacon Street in an effort to attempt another controlled

delivery. At the time, Detective Pasciucco was parked on Park

Drive, around the corner from, though not in direct line of

sight of, 1019 Beacon Street. At this point Pasciucco observed

the blue Caravan as it turned onto Park Drive, passed his

vehicle, and turned onto Beacon Street heading toward No. 1019.

Pasciucco identified the occupants as the same two men whom he

had seen in the blue Caravan the previous morning. When the

blue Caravan parked across the street from 1019 Beacon, Agent

Lenzie identified its two occupants as the same two black men he

had seen in the blue Caravan on November 11.

A short time later, Keesha Barrows arrived and parked

her vehicle behind the postal delivery truck. As Inspector Gray

9
left the apartment building with the undelivered package, Keesha

Barrows approached her, signed for the package, then placed it

in her vehicle. The blue Caravan made a U-turn and pulled up

behind the Barrows vehicle. At that point, Bashorun (aka “Tony

Johnson”), Junaid (aka “Tony from Cambridge”), and Keesha

Barrows were arrested pursuant to Agent McGrath’s instruction.

A subsequent search of the blue Caravan, conducted

incident to the warrantless arrests, disclosed several pieces of

inculpatory evidence, including a cellular phone, documents

reflecting the telephone numbers of Keesha Barrows and the

Brookline post office, as well as the Express Mail tracking

number for the package containing the contraband heroin.

In due course, Bashorun and Junaid were indicted for

conspiring to possess heroin, with intent to distribute, see 21

U.S.C. § 846; possessing heroin, with intent to distribute, see

id. § 841(a)(1); 18 U.S.C. § 2; five counts of utilizing a

telephone to facilitate a drug offense, see 21 U.S.C. § 843(b);

and one count of immigration fraud, see 18 U.S.C. § 1546(a).

Thereafter, Bashorun moved to suppress all evidence

seized incident to his warrantless arrest, on the ground that

“law enforcement officers did not have probable cause to arrest

[him.]” Following a six-day evidentiary hearing, during which

several law enforcement agents testified, the district court

10
denied the motion to suppress.

Subsequently, Bashorun arrived at a plea agreement with

the government and entered a conditional guilty plea, pursuant

to Federal Rule of Criminal Procedure 11(a)(2), reserving the

right to appeal the district court order denying the motion to

suppress the evidence seized pursuant to his warrantless arrest.

II

DISCUSSION

Bashorun now contends that his warrantless arrest was

invalid because the record unequivocally demonstrates that Agent

McGrath, who ordered the arrest, lacked contemporaneous

knowledge of the critical fact that would have established

probable cause to arrest the passenger in the blue Caravan on

November 12: namely, that the same two persons were in the blue

Caravan on both November 11 and 12. Instead, Bashorun argues,

the record reveals that the only officer arguably in a position

to make such an identification – Detective Pasciucco – did not

communicate that information to Agent McGrath prior to the

arrest.

Accordingly, Bashorun maintains that the evidence

showed, at most, that he was “merely present” — i.e., a s a

passenger — in the blue Caravan on November 12. Since the

11
present claim was never presented to the district court,1 we will

not entertain it on appeal. See United States v. Torres, 162

F.3d 6, 11 (1st Cir. 1998), cert. denied, 526 U.S. 1057 (1999);

United States v. Nuñez, 19 F.3d 719, 721-23 (1st Cir. 1994); see

also United States v. Meraz-Peru, 24 F.3d 1197, 1198 (10th Cir.

1994).

As Bashorun points out, the precise contours of the

fellow-officer rule have never been limned by this court: for

example, as to whether the “directing” officer (viz., Agent

McGrath) personally need have known — through personal

observation or verifiable information communicated by fellow

officers — all facts necessary to demonstrate probable cause, or

whether the cumulative knowledge of all participating officers

may be considered. See United States v. Meade, 110 F.3d 190,

1Instead, in a January 8, 1998, memorandum of law supporting
the motion to suppress, Bashorun simply set forth the so-called
“fellow-officer” rule, which merely requires that the district
court “determine whether ‘at the moment the arrest was made’ the
‘facts and circumstances within [the officers’] knowledge and of
which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that [the
suspect] had committed or was committing an offense.’”
(Emphasis added.) Thus, in the district court Bashorun
essentially contended simply that none of the officers involved
in his arrest possessed sufficient evidence to establish
probable cause. At no point did he contend that Agent McGrath
— qua “directing” law enforcement officer — lacked the requisite
information to support the probable cause assessment.

12
194 (1st Cir. 1997).2 Bashorun nonetheless urges that we now

reach out for the controversial question bypassed in Meade and

adopt the rule that the prosecution must establish that the

supervising officer possessed all the requisite probable-cause

data, rather than simply presume that subordinate officers would

have communicated their collective knowledge to their

2Meade states in dicta:

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." 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 as a whole
possessed the necessary facts.
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." 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).

Meade, 110 F.3d at 194.

13
supervisor.

The legal theories Bashorun advances on appeal were

never raised in the district court, where he neither cited Meade

nor the controversy it identified, instead simply asserting that

the “officers” involved did not have probable cause for the

arrest. Now, however, he attempts to rely upon the altogether

different theory that even assuming the subordinate officers

possessed the requisite information to establish probable cause,

it was never communicated to Agent McGrath, who made the

probable-cause assessment.

Given these lapses and the consequent absence of a

sufficiently developed evidentiary record, the Meade-based

claims asserted on appeal are deemed waived. See Nuñez, 19 F.3d

at 722 (holding, pursuant to Fed. R. Crim. P 12(f), that

litigant waives issue not raised in pretrial motion to suppress,

except for “cause” shown); see also United States v. Collazo-

Aponte, 216 F.3d 163, ___ (1st Cir. 2000) [No. 98-1808, 2000 WL

801271, at *15 (1st Cir. June 27, 2000)]; Torres, 162 F.3d at 11

("A litigant [seeking to suppress evidence] cannot jump from

theory to theory like a bee buzzing from flower to flower.”).

Bashorun offers various rejoinders to the waiver

suggestion. First, he asserts that “the issue of which person

had knowledge of the facts constituting probable cause was

14
always before the district court,” citing the following

statement by the Assistant United States Attorney:

We started this [suppression hearing] with
the notion that we were going to ask this
witness [Agent McGrath], who made the arrest
decision, what he knew. And we were very
focused that what he knew was the focus of
this hearing. . . . The only issue, [] it
seems to me, is what this witness [Agent
McGrath] knew and the cross-examination of
that witness. . . . What the defense wants
to do now is find out every witness who ever
made an observation, apparently whether or
not it was communicated to McGrath.

The quoted excerpt is unavailing, however, for two principal

reasons.

First, we enforce Rule 12(f) waivers even though the

district court ultimately did address the waived issue on the

merits, unless the appellant can show “cause” for failing to

raise it in a pretrial motion. See Nuñez, 19 F.3d at 722.

Bashorun has attempted no such showing.

Second, Bashorun wrenches the prosecutor’s remarks from

their context. During the McGrath cross-examination at the

suppression hearing, defense counsel represented to the district

court: “[T]his witness knows some things that some people have

told him but doesn’t know a lot about what those people, in

fact, saw.” Further, defense counsel suggested that other law

enforcement officers, such as Agent Lenzie and Detective

Pasciucco, should be called as witnesses so that “the Court can

15
adequately assess the reliability of the tremendous amount of

hearsay evidence that [Agent McGrath] has provided.”

Over the government’s objection, the district court

agreed, explaining that if one of Agent McGrath’s fellow

officers were to offer testimony — concerning his observations

on November 11 or 12 — which was not consistent with Agent

McGrath’s testimony as to what that officer had told him, then

McGrath’s credibility could be called into question. Fairly

viewed in context, therefore, the prosecutor’s objection went

simply to the unanticipated expansion of the witness list

because “the defense has been trying mightily to discover the

entire case two weeks before trial,” and because the prosecutor

believed that defense counsel had been afforded adequate

opportunity to test Agent McGrath’s credibility through cross-

examination.

16
 Moreover, at no point in the entire exchange did

counsel suggest that the defense was interested in calling

additional witnesses to determine whether they had communicated

their observations to Agent McGrath, but rather to determine

what they had observed. Thus, the defense not only failed to

present even a subliminal Meade claim, but left entirely open

the clear impression imparted in its pretrial motion that its

principal contention was that none of the individual officers

possessed sufficient facts to establish probable cause.

Accordingly, the ensuing statements by the prosecutor and the

district court fairly cannot be construed as concessions that

probable cause properly could be established only through the

knowledge possessed by Agent McGrath.

Next, Bashorun points out that he proposed the

following findings of fact following the suppression hearing:

1. The only two law enforcement agents
involved in the investigation on both
November 11 and 12, 1997 who had an
opportunity to see the occupants of the blue
Dodge Caravan before the arrest were Agents
Lenzie and Pasciucco. Agent McGrath did not
see the occupants of the Caravan until after
the arrest on November 12.

2. Prior to the arrest, Agent Pasciucco
made no radio transmissions that the
occupants were the same on November 12 as he
had observed on November 11. Agent
Pasciucco did not testify that he was aware
prior to the arrest of any observations of
“evasive” driving by the Caravan on November

17
 12.

3. By the time he discontinued his
surveillance on November 11, 1997, Agent
Lenzie had only observed one of the two
occupants of the Dodge Caravan. He did not
see the other, if in fact there was another,
occupant of the Caravan on November 11.
Because he only saw one person in the
Caravan on November 11, he was in no
position to say that the two occupants of
the Caravan were the same on November 11 and
12.

Consequently, Bashorun argues, “[t]here would have been no

reason [to ask] for such findings if all of the information

known to the surveillance agents could be added together to

determine if probable cause to make an arrest existed.”

Once again we disagree, for the simple reason that the

credibility of Agent Lenzie and Detective Pasciucco regarding

their observations was at least as relevant to the non-Meade

defense theory asserted in Bashorun’s pretrial motion to

suppress. That is, if Detective Pasciucco did in fact make the

November 12 observation to which he testified, Bashorun’s

pretrial contention that none of the officers involved had

sufficient facts to establish probable cause would be

undermined.

Thus, for example, the district court reasonably may

have construed Proposed Finding 2 — viz., that “[p]rior to the

arrest, Agent Pasciucco made no radio transmissions that the

18
occupants were the same on November 12 as he had observed on

November 11" — as a challenge to the credibility of Detective

Pasciucco’s observation (as contrasted from his communication of

it to McGrath), since it would be reasonable to expect that if

Pasciucco truthfully testified that he had made so crucial an

observation, in all likelihood he would have communicated it to

his fellow officers. As Pasciucco did not communicate it,

however, Bashorun invited the district court to find that he

never made the observation at all.

Importantly, the district court interpreted Proposed

Finding 2 in precisely this fashion, as demonstrated by the fact

that it made no finding whatsoever as to whether either Agent

Lenzie or Detective Pasciucco had communicated their respective

observations to fellow officers. See United States v. Bashorun,

No. 97-CR-10318, at 16-17 (D. Mass. Jan. 5, 1999) (expressly

“credit[ing]” Agent Lenzie’s and Detective Pasciucco’s

observations of November 12 that the same two men were in the

blue Caravan on November 11 and 12, but making no mention or

finding as to whether they communicated their observations to

fellow officers).

Quite clearly and understandably, therefore, the

district court did not consider the issue of inter-officer

communication material to the proffered defense, except as it

19
might pertain to the entirely discrete matter of the credibility

of the testimony provided by Lenzie and Pasciucco regarding

their observations.3

Bashorun nevertheless argues that any waiver must be

excused since the district court addressed the Meade issue on

the merits, as reflected in the following statement in its

opinion:

[E]vidence supporting probable cause can be
cumulative: “[L]aw 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.”
United States v. Meade, 110 F.3d 190, 193
(1st Cir. 1993) . . . .

United States v. Bashorun, No. 97-CR-10318, at 18 (D. Mass. Jan.

5, 1999). This claim fails as well.

First, as previously noted, Rule 12(f) waivers are not

excused simply because the district court may have addressed the

waived issue on the merits. See Nuñez, 19 F.3d at 722.

Second, it strains credulity to suggest that the

district court meant to resolve the controversial Meade issue in

a single, unelaborated, prefatory sentence. Instead, as

evidenced by its appearance at the very outset of the district

3
Moreover, in addition to the initial waiver, Bashorun
submitted proposed conclusions of law following the evidentiary
hearing, without once mentioning or citing Meade.

20
court’s legal analysis, this sentence simply set forth the

probable cause precepts applicable where multiple law-

enforcement officers are involved in a warrantless search or

seizure.

Third, at no point did the district court even remotely

purport to acknowledge that the defense intended to litigate any

inter-officer communication claim. Were it otherwise, we think

it would be reasonable to expect that the district court would

have quoted the Meade dicta presently touted by Bashorun on

appeal, in which we discussed whether communication of the

knowledge acquired by individual officers may be presumed, or

whether proof of inter-officer communications is even required

under the “fellow-officer” rule. See supra note 2. The

district court’s silence on these weighty matters speaks

volumes.

21
 Finally, Bashorun argues that for us to find a Rule

12(f) waiver would breach the promise made in the plea agreement

that he could appeal the denial of the suppression motion. As

this argument rests on the incorrect assumption that “[t]he

district court’s order squarely addresses the issue raised on

appeal[,]” it fails as well.

When the government entered into the plea agreement

with Bashorun, it was entitled to assume, as the law plainly

provides, that only arguments duly presented to the district

court would be deemed preserved for appeal. Although Bashorun

cites case law holding that the government must scrupulously

perform all promises made in its plea agreements, there is no

authority for the view that it implicitly promises that a Rule

11(a)(2) appellant shall have the legal right to insist that

legal theories waived below are nevertheless to be considered

preserved for appeal.

As we have done in the past, we now bypass the issue

as to whether “plain error” review is available, see Nuñez, 19

F.3d at 723 n.10 (bypassing question and finding no plain

error), and instead accord Bashorun the benefit of that standard

of review. See United States v. Olano, 507 U.S. 725, 732-33

(1993)) (requiring that appellant prove that error is “plain” or

“obvious” and affects substantial rights, and that appellate

22
court determine, in its discretion, that error ”seriously

affected the fairness, integrity or public reputation of

judicial proceedings”); Fed. R. Crim. P. 52(b).

23
 We have noted the difficulty confronting defendants

“where reliable review has been rendered impossible by

inadequate [factual] development at the district court level.”

Nuñez, 19 F.3d at 723 n.10. More to the present point, the

defense failure to invite the district court’s attention to the

inter-officer communications issue resulted in a virtually total

absence of essential factual findings relating to the merits.

Consequently, critical factual questions remain both ambiguous

and conflicted.

For example, Detective Pasciucco ambiguously testified

initially that he had made no radio communication on November 12

after observing the blue Caravan on Park Drive. Later, however,

he allowed that he could not remember. Agent McGrath, on the

other hand, initially testified that Detective Pasciucco had

reported to him that the occupants in the blue Caravan were “the

same persons as the day before.” Later, however, Agent McGrath

testified that he had received a radio communication from

someone after the blue Caravan pulled up in front of 1019 Beacon

Street on November 12, advising that the blue Caravan occupants

were “the two black males that had been in it for two days.”

The latter communication would have taken place immediately

after Detective Pasciucco observed the blue Caravan turn from

Park Drive onto Beacon Street.

24
 Thus, it cannot be seriously suggested that the present

record makes it either “obvious” or “clear” whether these

pivotal communications took place. Accordingly, Bashorun cannot

demonstrate plain error under any scenario. See Nuñez, 19 F.3d

at 723 n.10 (“‘[E]rror cannot be “clear” or “obvious” unless

the desired factual finding is the only one supported by the

record below.’”) (citation omitted).

Finally, ample additional grounds preclude any “plain

error” finding. See United States v. Diallo, 29 F.3d 23, 25

(1st Cir. 1994) (“[P]robable cause should be determined under a

‘totality-of-the-circumstances’ test . . . [and] ‘is a fluid

concept – turning on the assessment of probabilities in

particular factual contexts.’ . . . ‘The substance of all the

definitions of probable cause is a reasonable ground for belief

of guilt. And this means less than evidence which would justify

condemnation or conviction.’") (citations omitted).

The argument advanced by Bashorun on appeal rests

entirely on the premise that the visual identifications of the

passengers in the blue Caravan on two successive days was the

critical evidence without which there could have been no

probable cause for their arrests. As the district court aptly

observed, however, and the record amply demonstrates, see supra

Section I, Agent McGrath was in possession of a far broader web

25
of inculpatory evidence having little to do with whether

Bashorun (aka “Tony Johnson”) was the passenger in the blue

Caravan on November 11 and 12. For instance, there was no

dispute that the blue Caravan made highly suspicious movements

on both days, traveling from 1019 Beacon Street to the Brookline

post office, then making evasive maneuvers while followed by law

enforcement officers. See United States v. Bashorun, No. 97-CR-

10318, at 16-17 (D. Mass. Jan. 5, 1999) (noting “suspicious”

movements of blue Caravan). Consequently, the very least that

can be said is that a finding that the passenger in the blue

Caravan on November 12 was “merely present” most certainly was

not compelled. See, e.g., Meade, 110 F.3d at 198-99 (affirming

finding of probable cause to arrest passenger in vehicle,

occupied by attempted-robbery suspects, which made suspicious

maneuvers; noting as well that “these facts reveal

‘substantially more than a momentary, random, or apparently

innocent association’”); United States v. Martinez-Molina, 64

F.3d 719, 729 (1st Cir. 1995) (affirming finding of probable

cause to arrest defendants who were members of large group

selling drugs in park).4

4
The district court identified several other factors
material to the common-sense probable cause determination: (1)
Leighton positively identified “Tony from Cambridge” as the man
who tried to receive the package on November 11, and drove the
blue Caravan that day; (2) Tony Johnson, the apartment lessee,

26
 Accordingly, it simply cannot be seriously suggested

that the probable-cause calculus indulged by the district court

constituted plain error.

Affirmed.

had introduced “Tony from Cambridge” as his friend; and (3) both
“Tony from Cambridge” and Tony Johnson spoke with Leighton by
phone on November 11. As their conversations turned on
uncannily similar and unorthodox themes ( e.g., Barrows owed
Johnson money, and the package was a birthday gift for Barrows)
that it would have been entirely reasonable to infer that the
two Tonys, i.e., the two occupants of the blue Caravan, were in
close consultation.

27