United States Court of Appeals
For the First Circuit
No. 05-2705
UNITED STATES OF AMERICA,
Appellee,
v.
WILLARD JOHN ALLEN,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Selya and Howard, Circuit Judges,
and Smith,* District Judge.
Tina Schneider for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
November 17, 2006
*
Of the District of Rhode Island, sitting by designation.
SMITH, District Judge. Willard John Allen appeals from
a judgment and sentence entered by the United States District Court
for the District of Maine. After the District Court denied his
motion to suppress evidence and statements, Allen was convicted by
a jury of one count of conspiracy to distribute at least fifty
grams of cocaine base and one count of possession with intent to
distribute at least fifty grams of cocaine base in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The District Court
sentenced Allen to a 360-month term of imprisonment.1 Allen timely
appeals, challenging both his conviction and sentence. For the
reasons that follow, we affirm.2
I. Factual and Procedural Background
We set forth the facts as supportably found by the
magistrate judge. On the morning of January 4, 2004, Agents Roland
Godbout and Matt Cashman, both of the Maine Drug Enforcement Agency
(“MDEA”), received a tip from an informant that an individual named
“Curt” was selling crack cocaine out of the Morningstar Motel on
Lisbon Street in Lewiston, Maine. After surveilling the motel from
across the street for a couple of hours, Agents Godbout and Cashman
saw two individuals, later identified as David Moody and Jeff
1
The District Court also imposed a five-year term of
supervised release.
2
This appeal comes from the judgment in a criminal case
imposed by the United States District Court for the District of
Maine. The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231 and we have jurisdiction under 28 U.S.C. § 1291.
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Dillingham, arrive at the motel in an Izusu Trooper and enter room
number twelve. Approximately ten minutes later, Moody and
Dillingham emerged from the room and drove off in the direction of
downtown Lewiston. As the agents followed, the Trooper rapidly
accelerated to speeds outside the legal limit, prompting the agents
to instruct a uniformed police officer to make a traffic stop.
Moody was immediately arrested for driving with a suspended
license; Dillingham was detained and, after a little posturing,
admitted that he had bought crack cocaine from Curt at the
Morningstar Motel.
That afternoon, with Dillingham’s confession in mind,
Agents Greg Boucher and Barry Kelly surveilled the Morningstar with
particular scrutiny on room twelve. At approximately 3 p.m., Kelly
saw a white male (later identified as Allen) pull up to room twelve
in an Izusu Rodeo, enter the room, and return to the Rodeo with a
black male (later identified as Curtis Thurman, a.k.a “Curt”).
Reilly observed each man carrying a dark-colored duffel bag. Like
Moody and Dillingham earlier, the Rodeo drove out of the parking
lot and headed toward downtown Lewiston. The agents followed in
their unmarked vehicle and observed that the Rodeo was driving
“erratically,” that is, swerving, speeding, and signaling
inconsistently. Based on these factors, the agents believed that
Allen and Thurman were making a “heat run” by deliberately
attempting to avoid police detection and surveillance. Within
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approximately two minutes after leaving the motel, the agents
requested that uniformed Lewiston police officers stop the Rodeo.
After effectuating the stop, the uniformed officers
ordered both the driver and passenger out of the vehicle. The
officers handcuffed both men and placed them in separate cruisers.
At this point, Agent Godbout and Agent Kelly arrived on the scene,
went to the cruiser in which Allen was placed, and read Allen his
Miranda rights. Allen acknowledged that he understood his rights
and then agreed to speak with the agents.
Agent Kelly began by asking Allen if there were any drugs
in the Rodeo, to which Allen replied that he did not have any drugs
but that, hypothetically speaking, if drugs were in the vehicle
they would be in a black duffel bag in the back. When asked why he
thought that, Allen, gesturing to a particular black duffle bag,
stated that the bag was Thurman’s and that Thurman had prohibited
him from touching it. The agents then asked Allen for consent to
search the vehicle and Allen agreed, stating, “Yeah, go ahead, I’ve
got nothing to hide.”
The agents enlisted Agent Morin to search the vehicle
with his drug-detection dog. Not surprisingly, after the dog had
been commanded to search for drugs it alerted to the black duffel
bag in the rear of the vehicle that Allen had hypothetically
singled out. The agents searched the bag and found a substance
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that field-tested positive for cocaine, a receipt in Thurman’s name
from the Morningstar, $225 in cash, and a digital scale.
Agent Kelly then interviewed Allen back at the police
station, reminded Allen of his rights, and informed him that their
conversation could end at any time of Allen’s choosing. Allen told
Agent Kelly that he had smoked crack with Thurman several times
before, but was unsure about whether Thurman was a drug dealer.
Also, Allen disclosed that the duo was heading for an industrial
park to “dump” one of the duffel bags because of a noticeable
increase in police presence at the Morningstar.
During the suppression hearing over the effects seized
from the Rodeo, a magistrate judge discredited Allen’s version of
events (contending that he and Thurman were on their way to a
laundromat) and endorsed the government’s. The magistrate judge
recommended (and the district court accepted) that Allen’s motion
be denied because (1) the search was incident to a lawful arrest,
or, alternatively, (2) was based on probable cause to suspect the
car contained contraband.
After trial, the jury convicted Allen of conspiracy
involving 668.5 grams of cocaine base (of which 240 grams were
reasonably foreseeable to Allen) and of possessing 201.8 grams of
cocaine base with intent to distribute. At sentencing, the court
agreed with the government that Allen could be sentenced on the
basis of crack cocaine. Imposing a sentence based on the quantity
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identified in the jury’s verdict and taking into account Allen’s
career-offender status, the court sentenced Allen to concurrent
terms of 360 months. Allen timely appeals the denial of his motion
to suppress, a number of statements made by the government, and his
sentence.
II. Discussion
A. The Motion to Suppress
In an appeal of a suppression ruling, we review the legal
question of whether a Fourth Amendment violation occurred de novo.
See United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir.
1997). The trial court’s findings of fact, however, will be upheld
unless they are clearly erroneous. See United States v. Charles,
213 F.3d 10, 18 (1st Cir. 2000). We will thus affirm “a district
court’s decision to deny a suppression motion provided that any
reasonable view of the evidence supports the decision.” Id.
(quoting United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.
1996)).
Analogizing this case to those involving searches of
discrete trunk compartments, Allen argues that the police exceeded
the scope of what would otherwise have been a permissible search
because they searched the “trunk” of the vehicle.3 For Allen, the
black duffel bag was not in his “immediate control,” because he
3
Allen concedes that the initial stop and arrest for driving
to endanger were valid.
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could not reach the rear storage area of the vehicle, an Isuzu
Rodeo,4 without exiting the vehicle. Thus, according to Allen,
“the rear storage compartment was [not] part of the passenger
compartment,” and could not be permissibly searched incident to
arrest. We are compelled to reject this argument.
It is beyond cavil that pursuant to a custodial arrest,
a police officer may search the passenger compartment as well as
the contents of any containers found within the passenger
compartment of a vehicle in which the defendant is found at the
time of arrest. New York v. Belton, 453 U.S. 454, 460 (1981);
United States v. Fiasconaro, 315 F.3d 28, 37 (1st Cir. 2002). Such
a warrantless search, however, must be proper in scope. See
Belton, 453 U.S. at 460. As we have consistently held, post facto
scope of search inquiries into the actual reachability of certain
areas in a vehicle’s passenger compartment are squarely foreclosed.
United States v. Doward, 41 F.3d 789, 794 (1st Cir. 1994).
Instead, in order to determine whether the search of the vehicle
was permissible in scope, “the only question the trial court asks
is whether the area searched is generally ‘reachable without
exiting the vehicle, without regard to the likelihood in the
particular case that such a reaching was possible.’” Id. (quoting
4
In his brief, Allen appears to identify his vehicle as an
Isuzu Trooper; however the lower court’s opinion identifies the
vehicle as an Isuzu Rodeo. For our purposes, the distinction is
irrelevant.
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3 Wayne R. Lafave, Search and Seizure: A Treatise on the Fourth
Amendment § 7.1(c), at 16-17 (2d ed. 1987)); see United States v.
Mayo, 394 F.3d 1271, 1276, 1278 (9th Cir. 2005) (hatch area of a
Honda Civic); United States v. Russell, 670 F.2d 323, 327 (D.C.
Cir. 1982) (hatch area of a Mustang). Although the cases cited
above all involved some form of sedan, this bright-line rule
extends to sport utility vehicles as well. See United States v.
Olguin-Rivera, 168 F.3d 1203, 1205-07 (10th Cir. 1999) (covered
cargo area of an SUV); United States v. Henning, 906 F.2d 1392,
1396 (10th Cir.), cert. denied, 498 U.S. 1069 (1991) (“Where . . .
the vehicle contains no trunk, the entire inside of the vehicle
constitutes the passenger compartment and may be lawfully
searched.”). Thus, where a search is limited to areas accessible
from within the passenger compartment, including areas that are
“hatches,” or rear storage areas, it will be permissible in scope.
The vehicle at issue here, an Isuzu Rodeo, is a medium-
size sport utility vehicle and does not have a discrete trunk
compartment. Instead, it is equipped with a rear storage area that
is clearly reachable without exiting the vehicle. Consequently,
because it is an “area into which an arrestee might reach in order
to grab a weapon or evidentiary item,” the search of this portion
of the vehicle was valid incident to Allen’s arrest.5
5
Because we find that the search was valid incident to Allen’s
arrest for driving to endanger, we need not reach Allen’s
alternative ground for suppression, that the stop was not supported
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B. The Government’s Closing Arguments
Allen next argues that the government’s misstatement in
its closing argument prejudiced the outcome of the case. Because
defense counsel failed to object to the challenged portions of the
government’s closing arguments, we review for plain error. United
States v. Olano, 507 U.S. 725, 732-37 (1993) (requiring a showing
of error that was plain or obvious that affects substantial
rights); Fed.R.Crim.P. 52(b). Additionally, “[w]e cannot find that
an error has affected the defendant’s substantial rights unless it
is clear that the error affected the outcome of the proceedings.”
United States v. Bey, 188 F.3d 1, 6 (1st Cir. 1999).
For a claim that the prosecutor inaccurately stated the
evidence to the jury during closing arguments, we must determine
“(1) whether the prosecutor’s conduct was isolated and/or
deliberate; (2) whether the trial court gave a strong and explicit
cautionary instruction; and (3) whether it is likely that any
prejudice surviving the judge’s instruction could have affected the
outcome of the case.” Id. at 8 (quoting United States v. Lowe, 145
F.3d 45, 50 (1st Cir.), cert denied, 525 U.S. 918 (1998)). Here,
the prosecutor’s misstatement was simply not significant enough to
have affected the outcome of the case, and thus did not affect
Allen’s substantial rights. The misstatement Allen points to here
by probable cause. United States v. Sowers, 136 F.3d 24, 28 (1st
Cir. 1998).
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occurred, in the course of the government’s closing argument, when
the prosecutor inaccurately asserted that Allen was present in room
twelve when Dillingham bought crack from Thurman.6 However, the
remark consisted of fourteen words in a twenty-six page transcript
of the closing summary and, when combined with the repeated
cautionary instruction given by the trial judge to the jury that
closing arguments are not evidence, leads ineluctably to the
conclusion that the error was not prejudicial. See Lowe, 145 F.3d
at 50 (finding that the district court’s curative instruction that
a closing argument was not evidence, “adequately addressed” the
defendant’s concerns regarding any misstatement). There is no
evidence that the misstatement was anything other than
unintentional and isolated, and, in light of the minimal nature of
the error, we have no doubt that it fails to rise to the level of
plain error and did not prejudice the outcome of the case.
Allen additionally suggests that the government
prejudicially minimized its burden to prove guilt beyond a
reasonable doubt when it stated during rebuttal:
6
Specifically, the prosecutor stated:
You heard from Jeffrey Dillingham that he was in touch.
He had learned that Curt Thurman was at Morning Star and
when he went there, it was natural for him to have a
conversation with the defendant, Willard Allen, and he
did. Mr. Dillingham testified that the defendant took
part in that room with that transaction but Mr.
Dillingham testified that he went in again and he
purchased the drugs and left.
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And you heard all of the evidence that the defendant
knew, not only knew that it was there but the drug was
cocaine, cocaine base. You don’t need to find that with
certainty, you don’t need to find any of the elements
with certainty, that is not what this case is about, it’s
beyond a reasonable doubt.
Allen interprets this statement as “direct[ing] the jury that there
was no need to find ‘with certainty’ that Defendant had in is
possession what he knew was cocaine base.” Because again Allen
failed to object to this statement at trial, we review only for
plain error, which must be clear or obvious and “so shocking that
[it] seriously affect[s] the fundamental fairness and basic
integrity of the trial.” United States v. Mejia-Lozano, 829 F.2d
268, 272 (1st Cir. 1987) (internal quotation marks and citation
omitted).
As an initial matter, we are not entirely persuaded that
this statement diluted the constitutional burden of proof beyond a
reasonable doubt in the way Allen advocates. It is at least
plausible that the jury could have understood the prosecutor’s
statement to mean that the beyond a reasonable doubt standard does
not require a finding of absolute mathematical certainty, something
which is undoubtedly true. Cf. Cage v. Louisiana, 498 U.S. 39, 40
(1990) (contrasting the problematic use of the term “moral
certainty” with the use of the term “mathematical certainty”).
Nevertheless, even assuming that this statement comported with
Allen’s position, it would not have been prejudicial because of the
trial judge’s accurate, clear, and repeated instructions to the
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jury that the government must prove each element beyond a
reasonable doubt. Thus, the prosecutor’s isolated statement cannot
be deemed so shocking as to call into question the fundamental
fairness of the trial. Given the clear instructions of the trial
judge and the isolated nature of the comment, whatever error the
statement may have had, it cannot be said to have prejudiced, in
any way, the outcome of the case.
C. Sentencing on the Basis of Crack Cocaine
Finally, Allen urges this court to reconsider its holding
in United States v. Lopez-Gil, 965 F.2d 1124, 1134-35 (1st Cir.
1992), by arguing that the term “cocaine base” in 21 U.S.C. §
841(b) refers to crack cocaine exclusively — a proposition, Allen
contends, that would invoke Apprendi v. New Jersey, 530 U.S. 466
(2000), and require remand for re-sentencing because a jury did not
find beyond a reasonable doubt that his offenses involved
specifically the crack form of cocaine base. This argument is,
however, plainly foreclosed. Since Lopez-Gil, we have consistently
and routinely rejected any attempt to limit the term “cocaine
base,” within the meaning of § 841(b), to crack cocaine. See,
e.g., United States v. Anderson, 452 F.3d 66, 69 n.1 (1st Cir.
2006) (“In several previous cases, we have noted that crack cocaine
is merely one form of cocaine base.”); United States v. Pho, 433
F.3d 53, 63-64 (1st Cir. 2006) (reviewing Congress’s repeated
refusals to ameliorate the definitional disparity between § 841(b)
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and the post-1993 Sentencing Guidelines); United States v. Isler,
429 F.3d 19, 29 (1st Cir. 2005) (“this court has concluded that the
term ‘cocaine base’ in Section 841(b) includes all forms of cocaine
base (not simply crack)”); United States v. Medina, 427 F.3d 88, 92
(1st Cir. 2005) (same); United States v. Richarson, 225 F.3d 46, 50
(1st Cir. 2000) (same). In this case, the government submitted
undisputed evidence that the substance seized was cocaine base, and
the jury so found. As we have reiterated before, we remain bound to
prior panel decisions “in the absence of supervening authority
sufficient to warrant disregard of established precedent.” United
States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991). Allen’s
reach for supervening authority is merely a rehash of previously
rejected arguments. Without congressional clarification, new
Supreme Court authority, rehearing en banc, or some similarly
compelling indication that cocaine base means something other than
what we have said it means, Allen’s argument is without merit.
Allen’s conviction and sentence are affirmed.
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