United States Court of Appeals
For the First Circuit
No. 04-1325
UNITED STATES,
Appellee,
v.
EDWARD J. FOX,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Leval,* Senior Circuit Judge.
Nicholas J.K. Mahoney on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
December 22, 2004
*Of the Second Circuit Court of Appeals, sitting by designation.
STAHL, Senior Circuit Judge. On the evening of December
21, 2002, during a routine traffic stop, Eric Bergquist
("Bergquist"), a Maine State Trooper, discovered that Appellant
Edward J. Fox ("Fox") possessed, among other things, a shotgun.
Fox was arrested and ultimately charged with possession of an
unregistered shotgun in violation of 26 U.S.C. §§ 5841, 5845(a),
5845(d), 5861(d), and 5871. After the district court denied Fox's
motions to suppress certain statements he made and evidence that
was seized during the stop, Fox pleaded guilty to the charged
offense. Fox now seeks review of: (1) the denial of his motions
to suppress; (2) the district court's decision to apply the
obstruction of justice enhancement, and not to apply the acceptance
of responsibility reduction, in calculating his sentence; and, in
light of Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531
(2004), (3) the district court's finding that he committed perjury
at his suppression hearing. Finding no error, we affirm the
district court's determinations.
I. Background
After the December 21, 2002 traffic stop, Fox was charged
with possession of an unregistered shotgun. On May 27, 2003, he
filed several motions to suppress statements he made in response to
weapons-related questions and evidence that was seized during the
-2-
stop.1 The district court referred the motions to a magistrate
judge, and on July 30, 2003, the magistrate judge held a
suppression hearing. At the hearing, Bergquist testified that on
the evening of December 21, 2002, he was patrolling the northern
portion of York County, Maine in his cruiser. He was accompanied
only by his police dog, which was reposing in the back seat of the
cruiser.
At 9:55 p.m., Bergquist observed an individual, later
identified as Fox, driving a vehicle that appeared to be without a
working license plate light. Bergquist, aware that it was a
violation of Maine law to operate a vehicle without a functioning
plate light, followed the vehicle for a short distance but was
unable to determine whether the plate light was working.2 As a
result, he signaled for the vehicle to pull over, which it did.
Bergquist, after stopping his cruiser, activated its
spotlight and observed that Fox, the vehicle's sole occupant, "was
moving around . . . more than . . . normal for an average traffic
1
During the stop, Bergquist asked Fox a number of questions
about his criminal history and a package containing white powder
that he found in Fox's shirt pocket, but those questions and Fox's
answers are irrelevant to this appeal, as the government told Fox
before he pleaded guilty that it would not refer to them in its
case-in-chief and Fox has not argued for their suppression on
appeal.
2
See Me. Rev. Stat. Ann. tit. 29-A, § 1909 ("A vehicle must
have a white light capable of illuminating the rear registration
plate so that the characters on the plate are visible for a
distance of at least 50 feet.").
-3-
stop." He also saw Fox make a ducking motion, as if "reaching for
something under the seat or placing something under the seat."
With his "senses up," Bergquist exited the cruiser and
walked to the vehicle's driver's side window. He asked for, and
Fox produced, the vehicle's registration, proof of insurance, and
a driver's license. At that point, Bergquist recognized Fox as a
driver he had pulled over for a headlight violation in 1999. The
1999 stop had resulted in Fox's arrest for possession of brass
knuckles, a concealed firearm, and illegal drugs.
Bergquist then noticed a large bulge in Fox's left inside
jacket pocket. In light of all of the above, he ordered Fox to
exit the vehicle, walk to the cruiser, and stand with his feet
apart with his hands on the cruiser's hood. After Fox had complied
with the order, Bergquist asked him whether he possessed any
weapons. Fox responded that he had "a set of rings" or brass
knuckles.
At that point, Bergquist decided to frisk Fox. Although
he found only a wallet and papers in Fox's left inside jacket
pocket, he found brass knuckles in the left front pocket of Fox's
pants. Upon discovering the brass knuckles, Bergquist arrested Fox
for possession of a concealed weapon.
Immediately after the arrest, Bergquist thoroughly
searched Fox. In Fox's shirt pocket, a package containing white
powder and drug paraphernalia covered in white-powder residue was
-4-
discovered.3 In addition, Bergquist found an unused shotgun shell
in a pocket in Fox's jacket. Upon finding the shell, he asked Fox
to identify the location of the gun that went with the shell. Fox
claimed that he had no idea what Bergquist was talking about and
that he had never seen the shell before. Bergquist then asked Fox
if there was a gun in his vehicle. Fox said there was not.
After completing the search, Bergquist placed Fox in the
front seat of the cruiser and asked him whether there were any
weapons in his vehicle. Fox responded that there was a knife on
the driver's seat. Bergquist went to the vehicle and recovered the
knife. He then looked under the driver's seat and found a shotgun,
which was "fairly dilapidated" and lacked a trigger guard.
Bergquist tried to open the breech of the gun to see
whether it was loaded and, if necessary, unload it for safe
transport. He was unable to do so. He then carried the gun to the
cruiser and asked Fox to show him how to open it. Fox stated that
he had never seen the gun before and did not know how to open it.
Bergquist, displeased at the answer, raised his voice and swore at
Fox, and again asked him how to open the breech. Fox said it
appeared that if Bergquist pushed a certain button on the side of
the gun, the breech would open. Bergquist did so and it opened.
Inside, he found an unused shell identical to the one he had
discovered in Fox's pocket.
3
The white powder was later identified as baking soda.
-5-
Bergquist then drove Fox to the York County Jail. During
the drive, he informed Fox of his rights under Miranda v. Arizona,
384 U.S. 436 (1966).4
Fox's account of the stop differed in several respects
from that of Bergquist. For example, Fox testified that, at the
outset, Bergquist asked him about the bulge in his pocket and,
following a brief exchange, brandished his gun, jumped back, and
said, "Put your friggin' hands where I can see 'em." Fox also
insisted that following his arrest, Bergquist tried to make him sit
in the back of the cruiser with the dog, despite his protests that
he was terrified of dogs. And, Fox claimed that after he told
Bergquist that he did not know how to open the breech, Bergquist
cocked the hammer back, put the gun to Fox's head, called him a
profane name, and said, "Maybe this will jar your memory."
On August 12, 2003, the magistrate judge issued a
recommendation to the district court that Fox's motions to suppress
be denied. The magistrate judge concluded that the initial stop,
the order that Fox exit his vehicle and stand by the cruiser, the
frisk, the arrest, and the search of the vehicle were all lawful.
4
According to Miranda, police may not interrogate a suspect
who has been taken into custody without first warning him:
that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he
has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.
384 U.S. at 479.
-6-
He also decided that the statements Fox made in response to the
weapons-related questions before he was informed of his Miranda
rights were admissible under the public safety exception to the
rule that Miranda warnings must be given before a suspect's answers
may be admitted into evidence. Moreover, he commented that he did
not find Fox to be a credible witness. The district court adopted
the recommendation without a further hearing and denied the
suppression motions on September 9, 2003.5
On September 29, 2003, Fox pleaded guilty to the charged
offense, reserving his right to appeal the suppression rulings. At
his sentencing hearing on January 27, 2004, the district court
applied the obstruction of justice enhancement under section 3C1.1
of the United States Sentencing Guidelines. The record reveals
that the sentencing judge based the enhancement on his finding that
Fox perjured himself at his suppression hearing:
I [] need to . . . decid[e] whether
perjury that rises to obstruction of justice
under the guidelines has occurred.
I'm satisfied here that it did occur. .
. . [T]he Supreme Court [has] defined perjury
for these purposes as the giving of false
testimony under oath concerning a material
matter with the willful intent to provide
false testimony rather than as a result of
confusion, mistake, or faulty memory.
5
In addition to the statements that have already been
mentioned, Fox requested the suppression of certain statements that
he made after he had been taken to jail. The district court denied
that request. Nevertheless, those statements are irrelevant to
this appeal, as Fox has elected not to contest the denial of his
request to suppress them on appeal.
-7-
Here, the testimony was given under
oath, it was false, there's just no doubt in
my mind that the testimony about the
circumstances concerning [] Fox's description
of his familiarity or lack of familiarity with
the gun and how to clear the breech, etc., all
of that was false.
It was material because the motion was
to suppress these statements, and given the
[potential applicability of] the public safety
exception, their voluntariness [was] material
. . . .
Certainly there was willful intent to
provide false testimony. This was a carefully
crafted, although unbelievable story designed
to set the stage for seeking to have testimony
suppressed that might have attributed the
weapon to him.
. . . .
And . . . , I do not rest my opinion or
my decision simply on [the magistrate judge's]
statement that his testimony was not credible,
instead, I find specifically that this was
intentional perjury based upon my own
independent review of the record.
In addition, the district court refused to apply the acceptance of
responsibility reduction pursuant to section 3E1.1 of the United
States Sentencing Guidelines. It based its decision on (1) Fox's
receipt of the obstruction of justice enhancement and (2) its
finding that Fox had used drugs while on pretrial release.
On appeal, Fox argues that the district court erred in
refusing to suppress the statements he made in response to the
weapons-related questions and the evidence that was seized during
the stop because: (1) the initial stop was unlawful; (2) both the
order that he exit his vehicle and stand with his feet apart and
hands on the hood of the cruiser and the frisk were unreasonable;
-8-
and (3) he made the statements while the subject of custodial
interrogation but before he was advised of his Miranda rights. Fox
also asserts that the district court erred in: (1) imposing the
obstruction of justice enhancement; (2) refusing to apply the
acceptance of responsibility reduction; and (3) finding that he
committed perjury at his suppression hearing.
II. Discussion
A. Suppression Claims
Our review of the denial of a suppression motion is
plenary. United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.
1996). "[W]e will uphold a district court's decision to deny a
suppression motion provided that any reasonable view of the
evidence supports the decision." Id. We review the district
court's factual findings for clear error. United States v.
Charles, 213 F.3d 10, 18 (1st Cir. 2000).
1. The Initial Stop, Subsequent Order, and Frisk
Fox first challenges the validity of the initial stop,
the order that he exit his vehicle and stand with his feet apart
with his hands on the hood of the cruiser, and the frisk. A
traffic stop "constitutes a seizure within the purview of the
Fourth Amendment." United States v. Chhien, 266 F.3d 1, 5 (1st
Cir. 2001). Thus, at its inception, it "must be supported by a
reasonable and articulable suspicion of criminal activity," and the
officer's actions "must be reasonable under the circumstances."
-9-
Id. at 6. Accordingly, "an inquiring court must ask whether the
officer's actions were justified at their inception, and if so,
whether the officer's subsequent actions were fairly responsive to
. . . the circumstances originally warranting the stop, informed by
what occurred, and what the officer learned, as the stop
progressed." Id.
Here, Bergquist encountered a vehicle that appeared to be
without a working plate light, which he knew to be a violation of
Maine law. Although he tried, he was unable to determine whether
it had a functioning plate light. Thus, there was justification
for stopping the vehicle to investigate, as the stop was supported
by a reasonable and articulable suspicion that the vehicle was
traveling in violation of a traffic law. See Whren v. United
States, 517 U.S. 806, 810 (1996) ("As a general matter, the
decision to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred.");
Chhien, 266 F.3d at 6 (A traffic stop "must be supported by a
reasonable and articulable suspicion of criminal activity."). The
challenge to the initial stop fails.6
6
Although the owner of the vehicle Fox was driving testified
that she checked the vehicle's plate light shortly after the stop
and found it to be in working order, her testimony is of no
consequence. Bergquist was permitted to stop the vehicle because
he reasonably believed it to be likely that the plate light was not
functioning.
-10-
The challenges to the ensuing order and frisk also fail.
Before Bergquist issued the order, he: (1) saw Fox make a ducking
motion, as if "reaching for something under the seat or placing
something under the seat"; (2) realized that he had previously
arrested Fox for possession of brass knuckles and a concealed
firearm; and (3) noticed a large bulge in Fox's jacket pocket.
Moreover, before he frisked Fox, he learned that Fox possessed
brass knuckles. Under the circumstances, both the order and frisk
were reasonable. See Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6
(1977) ("[O]nce a motor vehicle has been lawfully detained for a
traffic violation, the police officers may order the driver to get
out of the vehicle without violating the Fourth Amendment[] . . .
."); Chhien, 266 F.3d at 6 ("[W]hile an officer's actions must bear
some relation to the purpose of the original stop, he may shift his
focus and increase the scope of his investigation by degrees if his
suspicions mount during the course of the detention.").
2. Fox's Statements
Fox next challenges the district court's refusal to
suppress the statements he made in response to Bergquist's weapons-
related questions. He claims that because he made the statements
while the subject of custodial interrogation but before he was
advised of his Miranda rights, they should have been suppressed.
Police officers are required to inform a suspect of his
Miranda rights prior to custodial interrogation. Miranda, 384 U.S.
-11-
at 478-79; see United States v. Ventura, 85 F.3d 708, 712 (1st Cir.
1996). If the Miranda rule is violated, the prosecution cannot use
statements obtained during the interrogation to establish its case-
in-chief. See Michigan v. Harvey, 494 U.S. 344, 350 (1990).
There are, however, several exceptions to the Miranda
rule. One such exception is that Miranda warnings need not precede
"questions necessary to secure [an officer's] own safety or the
safety of the public" for a suspect's answers to be admissible as
evidence of his guilt. New York v. Quarles, 467 U.S. 649, 659
(1984); see United States v. Shea, 150 F.3d 44, 48 (1st Cir. 1998).
This exception permits questions "reasonably prompted by a concern
for . . . safety," which must be distinguished from those "designed
solely to elicit testimonial evidence from a suspect." Quarles,
467 U.S. at 656, 659. "[T]he availability of th[e] exception does
not depend upon the motivation of the individual officers
involved." Id. at 656.
Here, Fox was not advised of his Miranda rights before he
made the challenged statements. And, for purposes of this appeal,
we assume that he was subject to custodial interrogation when he
made the statements.7 Even so, the district court did not err in
7
The government argues that Fox was not in custody for
purposes of Miranda at the time he made at least one of the
challenged statements. But, we need not decide the custody issue
to dispose of Fox's challenge to the admission of the statements.
-12-
refusing to suppress the statements, as they were all admissible
under the public safety exception to the Miranda rule.
At the outset of the stop, Bergquist: (1) saw Fox make
an irregular ducking motion; (2) realized that he had arrested Fox
for possessing brass knuckles and a concealed firearm following a
prior stop; and (3) noticed a large bulge in Fox's jacket pocket.
Under the circumstances, Bergquist was permitted to ask Fox whether
he possessed any weapons to ensure his own safety and the safety of
any passerby. See id. at 655-59.
In addition, once Bergquist had found the unused shell,
he was allowed to ask Fox for the location of the gun that went
with the shell and whether he had a gun or any other weapons in his
vehicle. See id. Having found the live shell and realized that he
had previously arrested Fox for possessing a firearm, Bergquist had
ample reason to fear for his own safety and that of the public.
Similarly, for safety reasons, Bergquist was justified in
asking Fox how to open the breech of the shotgun. See id.
Bergquist had been unable to open it himself, and there was good
reason to avoid transporting the gun without first ensuring that it
was not loaded: The gun was "fairly dilapidated," had no trigger
guard, and if loaded, could have fired if inadvertently bumped or
jostled.
Furthermore, because Bergquist was permitted to ask each
of the abovementioned questions to ensure his own and the public's
-13-
safety, Fox's answers to the questions were admissible. Therefore,
Fox's challenge to the admission of the statements fails.
B. Sentencing Claims
With respect to his sentence, Fox challenges the district
court's (1) application of the obstruction of justice enhancement;
(2) refusal to apply the acceptance of responsibility reduction;
and (3) finding that he committed perjury during his suppression
hearing. We address each of these challenges in turn.
1. Obstruction of Justice
First, Fox argues that the district court erred in
applying the obstruction of justice enhancement to his sentence.
The district court based the enhancement on its finding that Fox
perjured himself at his suppression hearing. We review
"[q]uestions of law concerning interpretations of the Sentencing
Guidelines . . . de novo, and the factual conclusions of the
sentencing court . . . for clear error." United States v. Reynoso,
336 F.3d 46, 50 (1st Cir. 2003).
It is settled that a finding of perjury can serve as the
basis for the enhancement. United States v. D'Andrea, 107 F.3d
949, 958 (1st Cir. 1997); see U.S. Sentencing Guidelines Manual §
3C1.1, cmt. n.4(b). However, before a court imposes the
enhancement based on a finding of perjury, it must determine
whether the defendant, "testifying under oath . . . [, gave] false
testimony concerning a material matter with the willful intent to
-14-
provide false testimony, rather than as a result of confusion,
mistake, or faulty memory." United States v. Dunnigan, 507 U.S.
87, 94 (1993).
Here, the district court addressed each element of the
above analysis and concluded that Fox perjured himself.8 It first
decided that Fox's "testimony[, given under oath,] about the
circumstances concerning [his] description of his . . . lack of
familiarity with the gun," that is, his testimony that Bergquist
threatened him with, for example, the police dog and shotgun, "was
false." It then determined that the testimony was material "given
the [potential applicability of] the public safety exception."9
Finally, it reasoned that, because the testimony was so "carefully
crafted," Fox had intended to give false testimony. We discern no
clear error in the district court's perjury finding.
Fox asserts that the enhancement should be struck down
because the district court failed to make an independent finding
8
Of course, "[a] sentencing court . . . is not required to
address each element of perjury in a separate and clear finding,"
so long as its "findings encompass all of the factual predicates
for a finding of perjury." United States v. Matiz, 14 F.3d 79, 84
(1st Cir. 1994).
9
At his sentencing hearing, though not on appeal, Fox argued
that the testimony in question was not material. We disagree.
Bergquist had testified adversely to Fox at the suppression
hearing. Fox's testimony, which accused Bergquist of misconduct
and, inferentially, of lying to conceal that misconduct, was
designed to impeach Bergquist's credibility and was therefore
material to, among other things, the applicability of the public
safety exception.
-15-
that he committed perjury and, instead, relied on the magistrate
judge's determination that he was not a credible witness. Fox,
however, completely ignores the fact that the sentencing judge
specifically addressed each element of the perjury analysis and
then stated, "I find . . . that this was intentional perjury based
upon my own independent review of the record."10
Fox also contends that because he was never indicted for
perjury, the enhancement was not available. Nonetheless, he cites
no authority for his claim that a perjury charge is a prerequisite
to the application of the enhancement based on a finding of
perjury. We decline the invitation to find the existence of such
a requirement.
2. Acceptance of Responsibility
Fox next claims that the district court erred in refusing
to award him the acceptance of responsibility reduction. The
10
In a single sentence in his appellate brief, Fox questions
whether the district court was permitted to base its finding of
perjury on its review of his suppression hearing testimony. But,
he fails to develop the argument that a district court cannot base
such a finding solely on its review of a record compiled in the
presence of a magistrate judge, and he does not cite any support
for his position. Although there is a dearth of case law on this
issue, the few relevant cases we have found do not support Fox's
position. See United States v. Osuorji, 32 F.3d 1186, 1189, 1192
(7th Cir. 1994) (affirming the district court's finding that, for
purposes of sentencing, the defendant perjured himself at a
suppression hearing held before a magistrate judge). In any event,
"we see no reason to abandon the settled appellate rule that issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
-16-
district court based its decision on: (1) the fact that Fox
received the obstruction of justice enhancement and (2) its finding
that he used drugs while on pretrial release. We review the
propriety of the district court's reliance on those two factors to
justify its denial of the reduction de novo. See United States v.
Carrington, 96 F.3d 1, 9 (1st Cir. 1996). But, we review the
district court's factual findings for clear error. See id.
We find no merit in Fox's position. As a general matter,
a court may rely on its application of the enhancement to justify
its denial of the reduction. See U.S. Sentencing Guidelines Manual
§ 3E1.1, cmt. n.4 ("Conduct resulting in an enhancement [for
obstruction of justice] ordinarily indicates that the defendant has
not accepted responsibility for his criminal conduct."). And, we
have already stated that we find no clear error in the application
of the enhancement to Fox's sentence. Thus, we cannot say that the
district court erred in refusing to award Fox the reduction.11 The
district court's application of the enhancement provided ample
justification for its denial of the reduction.
3. Blakely Challenge
As a final matter, Fox, citing Blakely v. Washington, ___
U.S. ___, 124 S. Ct. 2531 (2004), asserts that the district court's
11
To be sure, "[t]here may . . . be extraordinary cases in
which adjustments [for both obstruction of justice and acceptance
of responsibility] may apply," U.S. Sentencing Guidelines Manual §
3E1.1, cmt. n.4, but the district court did not clearly err in
concluding that this was not such a case.
-17-
finding that he committed perjury at his suppression hearing
violated his right to have every fact essential to his punishment
determined by a jury. Because Fox did not raise this argument
before the district court, we review the finding for plain error.
United States v. Morgan, 384 F.3d 1, 8 (1st Cir. 2004). To
establish plain error, Fox must demonstrate "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected [his] substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). We conclude that Fox has failed to carry his burden.
Under existing pre-Blakely First Circuit precedent, the
question of whether a defendant has committed perjury for purposes
of enhancing his guideline sentencing range is a matter to be
determined by the sentencing court. See, e.g., United States v.
McKeeve, 131 F.3d 1, 14-15 (1st Cir. 1997). The district court
acted in accordance with Circuit precedent in finding that Fox
perjured himself at his suppression hearing, and thus, we cannot
say that plain error occurred. See Morgan, 384 F.3d at 8.
Affirmed.
-18-