United States Court of Appeals
For the First Circuit
No. 08-1122
UNITED STATES OF AMERICA,
Appellee,
v.
TIMOTHY J. MEADOWS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Stahl, and Howard,
Circuit Judges.
Bruce Green, for appellant.
Paul G. Levenson, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
July 8, 2009
TORRUELLA, Circuit Judge. In this case, defendant
Timothy J. Meadows ("Meadows") appeals his conviction for being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Meadows challenges the district court's refusal to
suppress his statements, the district court's handling of his
status as a felon during trial, certain statements made in closing
arguments by the prosecutor, and certain jury instructions. After
careful consideration, we affirm.
I. Background
The evidence presented at the suppression hearing was as
follows.
On July 10, 2006, Brockton police officer Richard Gaucher
was on a detail near the Battles Farm housing complex in Brockton,
Massachusetts. At approximately 9:00 PM, he observed a car with
three occupants drive into the complex. Gaucher noticed that the
car was missing a rear license plate light and a signal light.
Gaucher then activated his lights and pulled the car over. Gaucher
observed the passengers moving within the car. The car then
stopped, the front passenger door opened, and the passenger, later
identified as Meadows, fled on foot toward nearby townhouses.
Gaucher used his radio to communicate that he had made a
motor vehicle stop and required assistance for foot pursuit.
Gaucher questioned the driver, Shawn Meadows, who identified the
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person who ran as his brother, Timothy Meadows.1 Officers Michael
Norman and Keith Shanks also arrived at the scene. They knew Shawn
Meadows, who informed them that his sister, Tia Meadows, lived in
the Battles Farm complex. Her address was relayed over the radio,
and the dispatcher indicated that a family disturbance was reported
at that address earlier in the day.
Officers Norman and Shanks proceeded to Tia Meadows's
unit. Gaucher testified that Tia Meadows's unit was not in the
direction that Timothy Meadows initially ran. Meanwhile, Gaucher
found bullets in the shorts of the other passenger, John DePina.
Gaucher announced that discovery on the police radio, and warned
that Timothy Meadows might be armed. The dispatcher also reported
that Timothy Meadows had been charged with a firearm offense in
1999. Norman and Shanks received these warnings before arriving at
Tia Meadows's unit.
Tia Meadows allowed Norman and Shanks to enter and
indicated that Timothy Meadows was upstairs. Shanks called to
Timothy Meadows to come downstairs. He did so, and the officers
handcuffed him and led him outside. Gaucher proceeded towards Tia
Meadows's home, encountered Timothy Meadows and Shanks outside, and
read him his Miranda rights. Gaucher asked him if he had a gun,
1
Shawn Meadows told Gaucher that Timothy Meadows might have had
an outstanding warrant. Gaucher broadcasted an alert to that
effect. Dispatch later responded that Timothy Meadows did not have
any outstanding warrants.
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and he said he did not. Meanwhile, Norman conducted a protective
sweep of Tia Meadows's home.
At some point, Gaucher learned that another officer had
discovered a firearm in the courtyard near where Meadows ran from
the car. The firearm was found approximately five minutes after
Meadows was handcuffed.2
Gaucher then spoke to two residents of the housing
complex, a mother and daughter, who saw an individual flee from the
car, run across the courtyard, and fall down at an area in the
center of the courtyard. The residents had previously directed
another officer to this area, where the officer discovered the
firearm. Gaucher asked the witnesses to look out their windows to
see if they saw the individual who ran. Meadows was standing
outside, handcuffed, next to a police cruiser. The witnesses
identified Meadows. Meadows was then formally placed under arrest.
Meadows later made incriminating statements, detailed below.
At the suppression hearing, Gaucher also used a map to
show the location of the stop, the direction Meadows ran, and the
location of Meadows's sister's home. The government also played
excerpts of a tape recording of the police dispatch channel, which
helped establish the order of events.
2
Gaucher initially testified at the hearing that he learned about
the discovery of the gun after giving Meadows his Miranda warnings,
but he revised his testimony after his recollection was refreshed
by his police report. The district court credited his initial
testimony, not his refreshed recollection.
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At the suppression hearing, the court suppressed the
witnesses' identification as unduly suggestive. The court refused
to suppress the incriminating statements and ruled orally:
So [the police] knew they were looking for
Timothy Meadows. They knew that Meadows had
fled on foot from a routine traffic stop.
They knew that Meadows had followed a rather
strange route through the housing complex to
get to 311, an evasive route, if you will. He
just didn't run directly there. They knew
that there had been a report of a domestic
disturbance at that location. They knew that
a passenger in the car was carrying ammunition
for a firearm. And they knew that Meadows had
previously been charged with firearm offenses.
In light of that knowledge -- oh, also, they
observed that when Meadows came downstairs he
was sweating and out of breath, though he had,
he says he had been there for some time.3
All of those circumstances, which I find
credible, are sufficient under the
reasonableness test of the Fourth Amendment to
in effect seize him and sort the matter out.
So it was not unreasonable to place handcuffs
on him. It was not unreasonable to do a
protective sweep which protective sweep was
reasonable, and likewise it was reasonable to
bring him outside where the safety of the
officers could better be obtained, the safety
of the officers and people in the various
apartments, especially in light of the fact
that other residents in the housing project, I
infer, were coming out of their apartments to
see what was going on. So, so far that's all
reasonable. At that time, Officer Gaucher
administers Miranda warnings and inquires of
Mr. Meadows. Mr. Meadows denies he has a
weapon, and at that time a weapon is found,
sufficiently in the area that it is a
3
At the suppression hearing, no one testified that Meadows was
sweating and out of breath. But, Meadows adduced this fact in his
proposed findings of fact, filed as part of his motion to suppress,
prior to the hearing.
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reasonable inference that the weapon most
likely was discarded by the person who fled
from the vehicle which person was Mr. Meadows.
That constitutes probable cause for his arrest
and he was appropriately arrested.
The motion to suppress, other than the part I
already allowed, is denied. Mr. Meadows'
rights are saved. All the matters that follow
thereafter, he having been properly
administered the Miranda warnings, are not
suppressed and may be used by the government.
The case then proceeded to trial. Prior to jury
selection, the defendant asked the court to instruct the jury
simply that Meadows was among the class of people not allowed to
carry a firearm. The court stated it would not force the
prosecution to go that far, and that the defendant only had a right
to require the prosecution to stipulate the existence of a prior
felony. During jury selection the court explained that Meadows was
a felon and was not permitted to possess a firearm. The court then
asked whether Meadows's status as a felon would influence the
jurors. During pretrial instructions, the court also stated that
Meadows was "among that group of people whom under the law they
never again can possess a firearm or a piece of ammunition."
At trial, the government called the mother and daughter
from the housing complex who witnessed an individual fall in the
field after running from the car. The mother testified that after
the individual fell, he made a motion patting the ground, then got
up and kept running. She testified that she told an officer what
she saw, that the officer went to that area with a flashlight, and
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that the officer called other police officers who took pictures of
that area. She later learned that a gun was found in the spot
where the individual fell. She did not identify Meadows, but only
described the individual as wearing blue jeans and a white shirt.
The daughter also testified to the same events. And the officer
who found the gun also corroborated that testimony. The officer
also testified that the grass was bent, so that it looked like
someone had fallen there. The government also introduced Meadows'
grass-stained jeans.
Shawn Meadows also testified that his sister, Tia
Meadows, had been involved in domestic disputes with her boyfriend,
Darrell Rodney, on the date in question. Shawn Meadows explained
that he had already been over to her house once that day, without
Timothy Meadows, and had a physical altercation with Rodney. After
another dispute arose later that day, Shawn Meadows decided to
change the locks on the apartment. On the way, Shawn Meadows
picked up his brother, Timothy Meadows, and Timothy Meadows'
neighbor, John DePina. Shawn Meadows testified that when they were
pulled over, Timothy Meadows ran from the car. Shawn Meadows never
saw a gun on Timothy Meadows, nor heard him discuss a gun or
violence. John DePina, the other passenger, testified that while
in the car on the way to Battles Farm housing complex, Timothy
Meadows asked him to hold two bullets.
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Officer Shanks also testified. After Shawn Meadows told
Shanks and Norman where his sister lived, the two proceeded to that
unit. Inside, Shanks called up to Timothy Meadows to come
downstairs. Meadows did so and was sweating and out of breath.
Shanks and Norman frisked and handcuffed Meadows. Meadows stated
that he had been at his sister's house all day. Shanks testified
that on the ride to the police station, Meadows first said that the
gun was not his and was not found on him, but later began asking
the officers if he could cooperate and get help to get out of his
situation.
Officer Gaucher also testified, again recounting the
events of that night. He recounted that Meadows initially denied
being in possession of a firearm. He further testified that after
being given his Miranda warnings, being arrested, and being taken
to the station, Meadows told him that he had a five-month old
daughter and that he wanted to cooperate to avoid going back to
jail. According to Gaucher, Meadows admitted that he had bought
the gun from a drug dealer a year ago. Later, when Meadows
overheard Gaucher asking another police officer about whether the
gun's magazine's capacity exceeded ten rounds, Meadows stated that
the gun would not hold more than nine rounds. Meadows also stated
that he brought the gun with him to scare Rodney, who had
previously threatened his brother, Shawn Meadows. Officers Shanks
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and Nelson also corroborated Gaucher's testimony about Meadows's
incriminating statements at the station.
On cross-examination, defense counsel elicited from
Gaucher that these statements were not recorded, but that
Massachusetts police departments have been instructed to begin
recording confessions. Also on cross-examination, Gaucher was
asked about whether there was any indication that law enforcement
would accept Meadows's offer of cooperation. Gaucher said that
was a possibility that was rejected because Meadows's record was
"too extensive." Defense counsel did not move to strike this
answer.
Further testimony came from Agent Robert White of the
Bureau of Alcohol, Tobacco, Firearms and Explosives, who
interviewed Meadows at the station with other officers. White
recounted that Meadows said that he was going to his sister's house
because she had been in a fight with her boyfriend. According to
White, Meadows said that he brought the firearm because he knew
that his sister's boyfriend also possessed one. Meadows gave the
first name of the drug dealer from whom he had, through a friend,
purchased the firearm. Meadows indicated he had a steady job, a
young daughter, that he did not wish to return to prison, and that
he would cooperate. White testified that the conversation was
limited because Meadows could not provide significant targets.
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A fingerprint expert also testified that no prints were
found on the gun that was recovered, but that fingerprints are
rarely found on guns. Other witnesses established that the firearm
moved in interstate commerce.
After the close of evidence, the court conducted a charge
conference. Meadows requested an instruction that the
Massachusetts Supreme Judicial Court has ruled that a cautionary
instruction should be given when unrecorded statements of a
defendant are admitted. Over the government's objection, the court
indicated that it would inform the jury "that the Supreme Judicial
Court has advised state law enforcement officers to record
statements and [there are] various cautions in those cases if such
recordings are not made," but that there is no such requirement in
a federal case.
During closing arguments, the prosecutor stated, among
other things, that the resident witness "saw Timothy Meadows run
out of that car" and that her daughter "also saw where Timothy
Meadows ran through the courtyard behind Unit 205 and where he fell
where a few minutes later the gun was found, the same precise
spot." The prosecutor later acknowledged that the resident did not
identify Meadows in court. But, the prosecutor concluded, "you
know exactly who it was that ran" since Shawn Meadows identified
his brother as running from the car after it was stopped.
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The prosecutor also said that, though he did not have to
prove motive, the evidence showed that Meadows was motivated to
possess a gun to threaten Rodney. Specifically, he observed that
Rodney's abuse of Tia Meadows had already escalated into violence
between Shawn Meadows and Rodney and that Shawn and Timothy Meadows
were expecting to encounter Rodney. Later, the prosecutor
commended the police for handling the situation, and stated "we'll
never know what exactly they had planned that night with that gun,
and even if they didn't have planned what might have happened, we
don't have to know that" because the police "defused the
situation."
The court then instructed the jury. Among other
instructions, the court briefly returned to the issue of Meadows's
status as a felon, advising the jurors to take that as a given. On
the subject of Meadows's running from the police, the district
court instructed:
Now, from that conduct, from that conduct you
could infer, you could draw an inference that
he didn't want to have anything to do with the
police. And one possible inference is he had,
he was demonstrating by running, a
consciousness of guilt. No one, no one could
be convicted of a crime on the basis of
consciousness of guilt standing alone. You
may consider it along with all the other
evidence. But if that's the only evidence of
guilt, he could not be convicted on the basis
of consciousness of guilt standing alone. And
here's why.
People have lots of reasons for not wishing to
interact with the police. Some reasons are
entirely benign. After all, it's a given in
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this case, you must accept, I've instructed
you, that he's in that class of persons who
are felons. Likewise, if he didn't want to
have anything to do with the police that night
because he felt guilty about something other
than possessing a firearm. That's the only
charge here. There's no other charge.
There's no other evidence, because it would be
irrelevant to this charge. So while you could
consider that running from the vehicle is
consciousness of guilt with respect to this
charge, and you can consider it with respect
to all the other evidence, you can never
convict based on that evidence alone and you
must consider that there may be other reasons
for not wanting to interact with the police,
some of which are absolutely benign and
conceivably some of which are less benign but
have nothing to do with this case, therefore,
it's not consciousness of guilt about this
particular offense.
Meadows had objected to such an instruction during the charge
conference. He did not object after the instruction was given. In
discussing the evidence, the court also stated:
I want to give you an example of a reasonable
inference both to show you what it is and to
show you how far and no further you can take
it. Let's say -- and this has nothing to do
with the case but -- it has nothing to do with
the case. -- a witness testifies she's walking
along a road. She looks out over a field of
barley or wheat. And she sees that in that
field the wheat is lying down in an irregular
course through the field. And let's say you
believe that testimony. That's what you
believe, that's what she saw.
Now, if that's all the testimony you have,
it's a reasonable inference -- it's a
circumstance. I mentioned circumstantial
evidence. -- that something went through that
field. Because if it was a windstorm the
whole field would be lying down. Something
went through there to knock the wheat down in
that course. That's a reasonable inference.
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But if that's all of the evidence you have,
you don't know what went through there. Was
it a child, an adult, someone on a dirt bike,
an animal of some sort, big, small. You'd
need other evidence. So, yes, you may use
your common sense. Yes, you may draw
reasonable inferences. But you may not guess,
you may not speculate, you're not back in the
jury room wondering about what's possible,
maybe, could have, or even probable. The
burden of proof here is on the government
beyond a reasonable doubt.
Meadows did not object to this instruction.
The court did not give an instruction regarding recording
statements made by arrestees. After the instructions, defense
counsel stated, "Your Honor, I don't have to restate the
instructions I submitted to you, but I would ask that the ones you
elected not to give during the --." The court interrupted, "Yes,
I won't give that."
The jury returned a guilty verdict. Meadows was later
sentenced to 15 years imprisonment as an armed career felon.
Meadows timely appealed. Meadows challenges his conviction, but
does not separately challenge his sentence.
II. Discussion
Meadows challenges the admission of his incriminating
statements, the district court's discussion of his status as a
felon, the prosecutor's statement that the resident identified him,
the prosecutor's discussion of Meadows's motive and "what might
have happened," the district court's flight instruction, the
district court's instruction on reasonable inferences, and the
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district court's failure to give the instruction on unrecorded
statements. We address each issue in turn.
A. Motion to Suppress
"'We apply a mixed standard of review to the district
court's denial of the motion to suppress. We review the court's
findings of fact for clear error and its application of the law to
those facts de novo.'" United States v. Dunbar, 553 F.3d 48, 55
(1st Cir. 2009) (quoting United States v. Morales-Aldahondo, 524
F.3d 115, 118-19 (1st Cir. 2008)). "To succeed, [Meadows] 'must
show that no reasonable view of the evidence supports the district
court's decision.'" Id. (quoting Morales-Aldahondo, 524 F.3d at
119).
Meadows argues that he was effectively arrested when the
police handcuffed him in his sister's home and led him outside. He
reasons that the gun had not yet been discovered and argues that
this handcuffing occurred without adequate justification, thus
constituting an arrest without probable cause. He then argues that
the statements occurring after this arrest should have been
excluded. The government counters that the officers' actions were
justified as a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968).
The government also argues that, in any event, Meadows only made
incriminating statements after the gun was found and he was
formally arrested, so there is no causal connection between the
handcuffing and the statements. We agree that the police were
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justified in restraining Meadows as part of a Terry stop, and so do
not reach the causation issue.
Meadows does not argue that officers Nelson and Shanks
lacked reasonable suspicion to initiate a Terry stop when they
located him. Rather, Meadows analogizes to United States v.
Acosta-Colón, where we found the scope of a valid Terry stop was
exceeded when the defendant, suspected of trafficking drugs at the
airport, "was prevented from boarding his plane, placed in
handcuffs, involuntarily transported (in restraints) to an official
holding area some distance from the place of the original stop,
confined to a small interrogation room and kept there under
observation for more than a momentary period." 157 F.3d 9, 15 (1st
Cir. 1998). We agree that that case nicely encapsulates the legal
issues relevant here, but we disagree that its result is
appropriate on these facts.
In Acosta-Colón, we explained that "'based merely on a
reasonable and articulable suspicion, a police officer may make a
brief stop or seizure of an individual to investigate suspected
past or present criminal activity.'" Id. at 14 (quoting United
States v. McCarthy, 77 F.3d 522, 529 (1st Cir. 1996)). Such a
Terry stop is only valid so long as "'the action taken was
reasonably related in scope to the circumstances which justified
the interference.'" Id. (quoting United States v. Young, 105 F.3d
1, 6 (1st Cir. 1997)). And, "[i]t is often said that an
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investigatory stop constitutes a de facto arrest 'when a reasonable
man in the suspect's position would have understood his situation,
in the circumstances then obtaining, to be tantamount to being
under arrest.'" Id. (quoting United States v. Zapata, 18 F.3d 971,
975 (1st Cir. 1994). We must inquire "whether the particular
arrest-like measures implemented can nevertheless be reconciled
with the limited nature of a Terry-type stop." Id. at 15; see also
United States v. Moore, 235 F.3d 700, 703 (1st Cir. 2000) ("The
court must consider the circumstances as a whole, and must balance
the nature of the intrusion with the governmental interests that
are served. Officer safety is one such governmental
interest . . . ." (internal quotation marks and citation omitted)).
To justify moving the defendant in Acosta-Colón, we
required "some specific fact or circumstance that could have
permitted law enforcement officers reasonably to believe that
relocating the suspect to a detention room was necessary to
effectuate a safe investigation." 157 F.3d at 17 (emphasis in
original). We recognized that "the use of handcuffs, being one of
the most recognizable indicia of traditional arrest, 'substantially
aggravates the intrusiveness' of a putative Terry stop." Id. at 18
(quoting United States v. Glenna, 878 F.2d 967, 972 (7th Cir.
1989)). Nonetheless, we held that "the use of handcuffs in the
course of an investigatory stop does not automatically convert the
encounter into a de facto arrest." Id. Rather, "[p]olice officers
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engaged in an otherwise lawful stop must be permitted to take
measures -- including the use of handcuffs -- they believe
reasonably necessary to protect themselves from harm, or to
safeguard the security of others." Id. But, police officers may
not use handcuffs as a matter of routine. Id. We concluded:
Thus, when the government seeks to prove that
an investigatory detention involving the use
of handcuffs did not exceed the limits of a
Terry stop, it must be able to point to some
specific fact or circumstance that could have
supported a reasonable belief that the use of
such restraints was necessary to carry out the
legitimate purposes of the stop without
exposing law enforcement officers, the public,
or the suspect himself to an undue risk of
harm.
Id. at 18-19.4 In Acosta-Colón, no facts justified the
handcuffing, since nothing indicated resistance or belligerence,
there was no "evidence that any of the customs officers harbored an
actual suspicion that Acosta was armed," and the government relied
only on generalized statements that as a suspected drug trafficker,
the defendant might be armed. Id. at 19-20.
This case is quite different. There was evidence that
police harbored an actual fear that Meadows was armed: Gaucher
relayed a warning over the radio after finding the ammunition. See
United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004) ("Police
4
See also United States v. Brame, 284 Fed. Appx. 815, 819 (1st
Cir. 2008) (unpublished) (concluding that officers could handcuff
a suspect without converting a Terry stop into an arrest where,
during the course of the stop, they came to reasonably suspect the
defendant was armed).
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officers are not limited to personal observations in conducting
investigatory activities, and reasonable suspicion for a Terry stop
may be based on information furnished by others."). The suspicion
announced by Gaucher was reasonable and grounded in a number of
facts, which the district court identified. First, from Shawn
Meadows's identification, Nelson and Shanks knew that their
suspect, Timothy Meadows, had fled from a traffic stop, using an
evasive route. This fact also suggests Meadows could still be a
flight risk. Such risk can contribute to an officer's reasonable
need to handcuff a suspect. Cf. United States v. Wilson, 2 F.3d
226, 232 (7th Cir. 1993) (finding that a suspect's flight, and the
risk of future flight, supports the application of handcuffs during
an investigatory stop). Second, the arresting officers knew that
another passenger in the car from which Meadows had fled was in
possession of ammunition. We think it uncontroversial that the
discovery of ammunition -- but not a gun -- in the car from which
a suspect fled could, together with the other facts present in this
case, lead an officer to reasonably suspect that the fleeing
suspect possessed the gun that went with the ammunition. Cf.
Glenna, 878 F.2d at 973 (discovery of ammunition, together with tip
that suspect was armed and other facts, supported use of
handcuffs). Third, the officers knew that Meadows was likely going
to the home of his sister, where there was a domestic disturbance
earlier in the day. Our conclusion does not rest on any one of
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these facts individually. Instead, the combined presence of these
facts made it reasonable for the officers to suspect Meadows might
be in a possession of a firearm, to suspect that violence in
connection with the domestic disturbance was reasonably possible,
and thus to handcuff Meadows and remove him from the home for their
safety while they investigated the situation. See Flowers v.
Fiore, 359 F.3d 24, 30 (1st Cir. 2004) (affirming summary judgment
in a § 1983 action for an officer who stopped the wrong vehicle and
cuffed and detained the single driver in the squad car, based on a
report that two African American males in a grey or black car were
on their way to a nearby destination with a gun, since "[w]here, as
here, police officers have information that a suspect is currently
armed and that a crime involving violence may soon occur, they are
justified in using restraints such as handcuffs without causing an
investigatory stop to cross over into an arrest").
Further, since Meadows does not challenge his formal
arrest after the firearm was found, the time that Meadows was
subject to a Terry stop was only approximately five minutes. This
short duration is yet another fact that, when combined with the
above reasons, bolsters our determination that the "cumulative
impact of the various elements of the stop" did not, in the "total
factual context," exceed permissible bounds. Id. at 31-32.5
5
We find these facts sufficient and need not decide if Meadows's
earlier arrest for a gun charge is relevant in the reasonable
suspicion analysis. While we have said that police knowledge of a
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Against these specific facts, Meadows's arguments that
the handcuffing was unreasonable are unpersuasive. First, Meadows
observes that Shawn Meadows readily identified Timothy Meadows and
revealed his sister's address. But this fact, while showing Shawn
Meadows was cooperative, did not give the police any reassurance
that Timothy Meadows would not pose a risk.
Second, Meadows observes that the warrant check came back
negative. This is a non sequitur because a warrant is not
necessary for a Terry stop. A warrant would have allowed for a
full arrest. Terry stops, by their very nature, may be made
without cause for a full arrest.
Third, Meadows questions whether his route was really
evasive, as the district court found. But the district court,
which heard testimony and traced the path on a map of the housing
complex, found otherwise, and Meadows offers no basis for finding
clear error.
Fourth, Meadows argues that he fled only a "short
distance" and was "easily located and indoors at the time of the
encounter." But this fact makes little difference. Meadows does
not dispute that he fled from the police. Nor does he dispute that
the police knew there had been a domestic disturbance earlier in
recent arrest for related conduct can be relevant to corroborate
other evidence in a Terry analysis, see United States v. Monteiro,
447 F.3d 39, 47 (1st Cir. 2006), here the record does not show that
the arrest was recent or particularly related to the instant
offense, other than simply generally involving firearm possession.
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the day at the address to which he fled. That this address was a
short distance from the location of the traffic stop is simply
immaterial to whether the police reasonably suspected Meadows posed
a risk requiring handcuffing.
Finally, Meadows attacks the district court's conclusion
that it was reasonable for the officers to take Meadows out of his
sister's home in the interests of safety. Meadows points to
testimony showing that other housing complex residents had begun to
gather and suggests that the situation was no safer outside. But
because the officers were rightly concerned that Meadows possessed
a firearm, they could reasonably remove him from the house based on
a fear that he had secreted the weapon within the home. Cf. United
States v. Ruidíaz, 529 F.3d 25, 32 (1st Cir. 2008) (holding that
even without independent safety concerns, an officer may order a
suspect out of a vehicle during a Terry stop as a security
measure); see also Michigan v. Long, 463 U.S. 1032, 1051 (1983)
("[T]he officers did not act unreasonably in taking preventive
measures to ensure that there were no other weapons within Long's
immediate grasp before permitting him to reenter his automobile.").
While the home often warrants greater Fourth Amendment protection
than a vehicle, the risk posed by the threat of enclosed spaces and
secret compartments to officers who are legitimately in a home and
are effecting a Terry stop may be comparable in each. See Romain,
393 F.3d at 75 (finding "no support for the proposition that the
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in-home setting automatically eclipses any and all interests in
officer safety" and "eschewing bright-line rules and treating the
residential nature of the premises as part of the totality of the
circumstances in determining whether reasonable suspicion justified
particular police actions"). While a residential setting may, in
some cases, be of importance in conducting a Terry totality of the
circumstances inquiry, here, the officers could reasonably remove
Meadows based on a safety concern that Meadows had fled to the home
while in possession of a firearm.
So, for the above reasons, we reject Meadows's challenge
to the denial of his motion to suppress and conclude that the
officers acted within the permissible scope of an investigatory
stop when they handcuffed Meadows and removed him from his sister's
home.
B. Meadows's Status as a Felon
Meadows objects to the extent to which his status as a
felon was put before the jury. Though Meadows's trial counsel
requested that the district court not tell the jury that Meadows
was a felon at all, Meadows concedes on appeal that the district
court's explanation of Meadows's felon status "did appear to be in
conformity with the holding in Old Chief," which bars evidence of
the name or nature of a prior offense where the defendant seeks to
stipulate to his status as a felon. United States v. Old Chief,
519 U.S. 172, 185 (1997). Though the district court did not allow
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evidence of the name or nature of his prior offenses, Meadows
contends that prejudicial information about his criminal history
nonetheless came before the jury. Specifically, Meadows complains
that Gaucher, Norman, and White all testified that Meadows told
them he did not want to go back to jail. He also complains about
testimony elicited by his own counsel in cross-examination that the
police decided not to use Meadows as an informant because his
record was "too extensive."
Meadows did not object to any of this evidence, so we
review for plain error. United States v. Mangual-Santiago, 562
F.3d 411, 427 (1st Cir. 2009). "'We will not find plain error
unless (1) an error occurred (2) which was clear or obvious and
which not only (3) affected [the defendant's] substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.'" Id. (quoting United States
v. Flemmi, 402 F.3d 79, 86 (1st Cir. 2005)). Here, this test is
clearly not met.
We see no reason to believe that Meadows was unfairly
prejudiced by testimony that Meadows said he did not want to go
back to jail. Meadows's status as a felon was clearly known to the
jury, and the fact that he spent time in jail adds little risk of
prejudice and does not provide facts about the name or nature of
his prior crime, as barred by Old Chief. This conclusion is only
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bolstered by the fact that Meadows used his prior jail time in his
own closing arguments to explain his flight.
Testimony that Meadows's record was too extensive for use
as an informant does add more prejudicial information in that it
suggests to the jury that Meadows had more than one prior felony
conviction. But, Meadows "cannot persuasively complain about the
admission of this evidence, given that it was the defense - not the
government - which elicited it in the course of its
cross-examination." United States v. Rivera-Rivera, 477 F.3d 17,
20 (1st Cir. 2007). Thus, even though the government may not have
been allowed to bring out such testimony, we see no unfair and
substantially prejudicial impingement of Meadows's substantial
rights in this case.
C. Closing Arguments
Meadows challenges two portions of the government's
closing arguments. Meadows concedes that he raised no objection
below, so review is again only for plain error. United States v.
Van Anh, 523 F.3d 43, 55 (1st Cir. 2008). Here, there was no
misconduct at all.
Meadows first challenges the prosecutor's statement that
the resident witness "saw Timothy Meadows run out of that car,"
even though the witness did not identify Meadows in court. Meadows
contends that the government thus improperly referred to the
suppressed identification. This argument mischaracterizes the
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closing. The prosecutor acknowledged that the witness did not
directly identify Meadows, but explained how her testimony
coincided with Shawn Meadows's testimony in such a way as to make
Meadows's identity clear. The government may ask jurors to draw
reasonable inferences from the evidence, and this is just what
happened here. See United States v. LNU, 544 F.3d 361, 367-68
(1st Cir. 2008) (specifically approving of a prosecutor's closing
argument asking jurors to infer, based on admissible evidence, a
conclusion also shown by excluded evidence).
Meadows next challenges the prosecutor's suggestion that
the jury consider "what might have happened" if the police had not
intervened. Meadows argues this was an improper suggestion that
Meadows was part of a sinister plan. This statement was proper as
it was made in the context of asking the jury to infer that
Meadows's motive in possessing the gun was to confront Rodney, his
sister's boyfriend. Such an inference was supported by Shawn
Meadows's testimony about his earlier fight with Rodney. Though
the government need only show possession to meet its burden, there
is no prohibition on introduction of evidence of motive and
opportunity as circumstantial evidence of possession. See United
States v. O'Shea, 426 F.3d 475, 484 (1st Cir. 2005) ("In other
words, evidence of the robbery makes it more likely than not that
O'Shea was the passenger in the SUV, had the opportunity to possess
the gun, and had the motive and opportunity to throw the gun from
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the SUV onto the rotary."). Similarly, there was nothing improper
about the prosecutor calling the jury's attention to circumstantial
evidence of Meadows's motive in closing arguments. Thus, we reject
Meadows's attack on the government's summation.
D. Jury Instructions
Finally, Meadows raises three challenges to the jury
instructions. First he argues that the district court's
illustration of circumstantial evidence through the example of a
field of wheat unfairly resembled a fact in the case -- that a
police officer said that the bending of the grass indicated someone
had fallen at the spot the gun was found. According to Meadows,
this instruction lent an undue amount of credibility to the
government's circumstantial argument that Meadows fell at that
spot.
"[W]e review properly preserved objections to the trial
court's jury instructions and verdict forms de novo." United
States v. González-Vélez, 466 F.3d 27, 34 (1st Cir. 2006). But
Meadows did not object to this instruction, so we review for plain
error. Id. at 34-35. "This standard is exceedingly difficult to
satisfy in jury instruction cases: '[T]he plain error hurdle, high
in all events, nowhere looms larger than in the context of alleged
instructional errors.'" Id. at 35 (quoting United States v.
Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001)).
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Here, we see no error at all. The district court made
clear that its example of a reasonable inference had nothing to do
with this case. It was not coaching the jury. And even if there
was some link to the trial evidence, the district court's
instruction was well within our rule that, "when instructing a
jury, a judge 'may explain, comment upon and incorporate the
evidence into the instructions in order to assist the jury to
understand it in light of the applicable legal principles.'"
United States v. Hernández, 490 F.3d 81, 84 (1st Cir. 2007)
(quoting United States v. Maguire, 918 F.2d 254, 268 (1st Cir.
1990)) (upholding a judge's reference to a specific meeting that
occurred in a charged conspiracy). In any event, bent grass only
reveals that someone fell on the grass, a fact not prejudicial to
Meadows. And the fact that it was Meadows who fell was established
through other evidence (namely the combined testimony of the
resident and Shawn Meadows). The district court's instruction
emphasized this distinction between knowing that someone had passed
through a field and knowing that a specific person had passed. So,
the instruction was both entirely proper and completely harmless.
Meadows next challenges the district court's flight
instruction. Meadows argues that flight may be equally consistent
with innocence, and so flight is not persuasive evidence of
consciousness of guilt. Meadows also again argues that he did not
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run far, and that the officers "easily apprehended" him at his
sister's house.
Meadows argues that his objection is preserved as he
objected to the instruction at the pre-instruction charge
conference. But our law is clearly contrary. "To preserve an
objection to a jury instruction under Fed. R. Crim. P. 30(d), a
litigant must lodge a specific objection and state the grounds for
the objection after the court has charged the jury and before the
jury begins deliberations." United States v. Roberson, 459 F.3d
39, 45 (1st Cir. 2006) (emphasis in original). "Objections
registered during pre-charge hearings are insufficient to preserve
the issue." Id. "We review such unpreserved jury instruction
claims for plain error only." Id.
Here, Meadows's challenge fails under any standard of
review. Meadows does not point to any problem in the wording of
the instruction, but rather challenges it in its entirety. Meadows
first argues that flight does not always show guilt. But the
district court made exactly that point in its instruction, thus
properly leaving the issue of the import of Meadows's flight to the
jury. See United States v. Rose, 104 F.3d 1408, 1417 (1st Cir.
1997) (upholding a flight instruction on this basis). And, as
should be obvious, the fact that Meadows's flight was neither
successful nor lengthy is immaterial to the fact that he chose to
flee.
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Finally, Meadows directs us to precedent from the
Massachusetts Supreme Judicial Court that requires, upon a
defendant's request, a cautionary instruction about unrecorded
statements made during custodial interrogation. See Commonwealth
v. DiGiambattista, 813 N.E.2d 516 (Mass. 2004).6 Meadows relies on
the DiGiambattista decision to argue for such a rule and objects to
the fact he did not receive such an instruction.
Meadows requested the instruction at the charge
conference, and the district court agreed to give it. After the
charge, which did not include the instruction, Meadows's counsel
tried to object to the instructions that the court "elected not to
give during the--." At that point, the court interrupted, saying
"Yes. I won't give that." It is not clear that Meadows was
6
Specifically, the Supreme Judicial Court held:
Thus, when the prosecution introduces evidence
of a defendant's confession or statement that
is the product of a custodial interrogation or
an interrogation conducted at a place of
detention (e.g., a police station), and there
is not at least an audiotape recording of the
complete interrogation, the defendant is
entitled (on request) to a jury instruction
advising that the State's highest court has
expressed a preference that such
interrogations be recorded whenever
practicable, and cautioning the jury that,
because of the absence of any recording of the
interrogation in the case before them, they
should weigh evidence of the defendant's
alleged statement with great caution and care.
Id. at 533-34.
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renewing his specific objection to this instruction at this point,7
but even giving him the benefit of the doubt, we see no error.
The instruction was not required. Meadows is in federal
court, not state court, and as we have held, there is no federal
constitutional right to have one's custodial interrogation
recorded. United States v. Torres-Galindo, 206 F.3d 136, 144 (1st
Cir. 2000); see also Roberto Iraola, The Electronic Recording of
Criminal Interrogations, 40 U. Rich. L. Rev. 463, 471 (2006) ("The
federal courts uniformly have rejected the argument that the
Constitution mandates, as a matter of due process, that a
defendant's confession be electronically recorded.").
Of course, the Supreme Judicial Court's instruction
requirement was made using that court's supervisory power, and not
through a constitutional requirement. DiGiambattista, 813 N.E.2d
at 529-32. But our inherent power as an intermediate appellate
court is not so broad as a state supreme court, and must be used
"sparingly." United States v. López-Matías, 522 F.3d 150, 154 n.8
(1st Cir. 2008). We decline to use any supervisory authority we
might have to uniformly require this instruction as a prophylactic
measure. Cf. United States v. Coades, 549 F.2d 1303, 1305 (9th
Cir. 1977) (rejecting a request for suppression of unrecorded
7
See United States v. Arthurs, 73 F.3d 444, 448 (1st Cir. 1996)
("Rule 30 is not satisfied by counsel's pre-charge colloquy with
the court or written explanation of grounds alone, nor even by a
post-charge attempt to incorporate by reference earlier
arguments.").
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statements because "[t]he need for the rule suggested by appellant
and the particular form such a rule should take are appropriate
matters for consideration by Congress, not for a court exercising
an appellate function").8
Finally, we note that Meadows develops no argument that
he was somehow prejudiced through detrimental reliance on the
district court's unfulfilled suggestion it would give the
instruction. We also see no argument for prejudice since the court
nonetheless instructed the jury that it would have to decide the
credibility and voluntariness of the statements, and Meadows was
able to make his arguments on those grounds through cross-
examination and summation. Accordingly, we reject all of Meadows's
challenges to the jury instructions.
III. Conclusion
For the foregoing reasons, Meadows's conviction is
affirmed.
Affirmed.
8
See also Torres-Galindo, 206 F.3d at 144 n.3 (Torruella, J.)
(expressing one judge's belief that such recording would be
preferable).
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