United States v. Staula

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1882

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN J. STAULA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Selya, Stahl and Lynch, Circuit Judges.

Martin K. Leppo for appellant.

Todd E. Newhouse, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief, for

appellee.

March 29, 1996

SELYA, Circuit Judge. A federal grand jury charged
SELYA, Circuit Judge.

defendant-appellant Stephen J. Staula, in relevant part, with

being a felon in possession of a firearm (count 1) and ammunition

(count 2), and with receiving a stolen firearm (count 3). See 18

U.S.C. 922(g)(1), (j). Following a five-day trial, the petit

jury convicted the appellant on all three counts.1 The court

imposed an incarcerative sentence.

In this appeal, Staula labors to convince us that the

district court thrice erred in denying his motions to (i) dismiss

the indictment for want of a speedy trial, (ii) suppress

evidence, and (iii) direct judgment of acquittal. We are not

persuaded that any error occurred.

I
I

Background
Background

We sketch the facts in the light most hospitable to the

jury's verdict. See United States v. Ortiz, 966 F.2d 707, 711

(1st Cir. 1992), cert. denied, 506 U.S. 1063 (1993).

During the early evening of September 13, 1993, officer

David Tyrie of the Hanover police department stopped a pickup

truck for patent violations of the state motor vehicle code. See

Mass. Gen. L. ch. 90, 6 (requiring, inter alia, a front license

plate on every commercial vehicle); id. 7 (requiring, inter

alia, operable brake lights). The appellant proved to be the

driver and registered owner of the ill-equipped vehicle. A

1The indictment also charged the appellant with two drug-
related offenses. The jury acquitted him on these counts and we
eschew any further reference to them.

2

female companion named Myriah Morse, later to become Staula's

wife, occupied the passenger's seat.

Tyrie testified that he smelled burnt marijuana when he

first approached the driver's side window to demand a

registration certificate and operator's license. He then

retreated to his cruiser with the documents and called for

backup. After two other officers arrived, Tyrie revisited the

vehicle and inquired whether the occupants had been smoking

marijuana. He also asked whether they had any marijuana in the

truck. Both Staula and Morse answered the queries in the

negative.

Apparently unconvinced by these disclaimers and by

Morse's volunteered statement that she recently had burned

incense in the vehicle, Tyrie sought the appellant's consent to

search the truck. After having been rebuffed, he ordered the

appellant to alight, searched the driver's side of the cab

(discovering no contraband), directed Morse to alight, searched

the other side of the cab, and found two bags of marijuana behind

the passenger's seat. Arrests followed all around.

Prior to impounding the vehicle, Tyrie conducted a

standard inventory search and discovered a fully loaded handgun

(which had been reported as stolen in November of 1992) and a box

of ammunition behind the passenger's seat. The gun and

ammunition were located within inches of the marijuana, and

within easy reach of the driver. The weapon's hammer was cocked.

At trial, the appellant built his defense around the

3

assertion that he lacked any knowledge of the drugs and weaponry.

To this end, he presented the testimony of a friend, Ralph Nason,

who claimed that he purchased the marijuana and, in a separate

transaction, accepted the gun and ammunition from an

acquaintance; borrowed the pickup truck from Staula on Saturday,

September 11; placed the described articles in the vehicle; and

then drove to New Hampshire. Nason supposedly remained there

(with the truck and the contraband) until Sunday evening. He

claims to have returned the truck to the appellant on Monday

(only minutes before Tyrie made the traffic stop).

II
II

Analysis
Analysis

A.
A.

The Speedy Trial Act
The Speedy Trial Act

The appellant's principal claim is that the prosecution

did not bring him to trial within the time frame prescribed by

the Speedy Trial Act, 18 U.S.C. 3161-3174 (the Act), and

concomitantly, that the district court therefore should have

dismissed the indictment. In this case, the speedy trial claim

involves a straight question of law engendering de novo review.

See United States v. Rodriguez, 63 F.3d 1159, 1162 (1st Cir.),

cert. denied, 116 S. Ct. 681 (1995); see also United States v.

Gallo, 20 F.3d 7, 11 (1st Cir. 1994) (explaining that pure

questions of law demand plenary appellate review).

The baseline premise of the Act is its requirement,

embodied in 18 U.S.C. 3161(c)(1), that a defendant is entitled

4

to be tried within seventy days of his indictment or initial

appearance before a judicial officer (whichever first occurs).

See United States v. Hastings, 847 F.2d 920, 924 (1st Cir.),

cert. denied, 488 U.S. 925 (1988). The premise cannot be taken

literally, however, for the Act contemplates that certain periods

of time will be excluded from the computation. See 18 U.S.C.

3161(h). An inquiring court therefore must follow a two-step

process. First, the court must do the basic mathematics and

determine the aggregate time elapsed awaiting trial. Second, it

must determine how many days should be excluded from that

ultimate sum. See United States v. Sepulveda, 15 F.3d 1161, 1193

(1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994).

Here, the salient dates and events are essentially

undisputed. The speedy trial clock began to tick on October 26,

1994 (the date of arraignment). See id. (describing date of

inception of speedy trial period). The clock stopped ticking on

March 16, 1995 (the date on which the appellant filed his motion

to dismiss under the Act). See United States v. Connor, 926 F.2d

81, 84 (1st Cir. 1991) (holding that "a motion for dismissal

[under the Act] is effective only for periods of time which

antedate the filing of the motion"). Excluding March 16, see

Rodriguez, 63 F.3d at 1163-64 (reiterating that the date on which

a motion is filed is not counted), the aggregate period amounts

to 140 days.

We now take the second step in the pavane. This step

begins and ends with the appellant's motion to suppress. The

5

appellant served this motion on November 17, 1994, and

simultaneously requested an evidentiary hearing. The government

filed an opposition. The magistrate judge assigned to hear

pending motions reserved the suppression motion for the district

judge. On March 22, 1995, Judge Tauro discussed the motion with

counsel but made no ruling. On the day trial began (April 18,

1995), the judge denied the motion from the bench without

convening an evidentiary hearing. He also denied the motion to

dismiss primarily on the basis that the period between the filing

of the suppression motion (November 17, 1994) and what he termed

the "preliminary hearing" thereon (March 22, 1995) constituted

excludable time under the Act.

The appellant challenges this ruling. He contends that

the brief exchange on March 22 did not comprise a "hearing" for

purposes of the Act. The point is significant because the Act

provides that delay connected with a pending pretrial motion,

"from the filing of the motion through the conclusion of the

hearing on, or other prompt disposition of, such motion," is

excludable. 18 U.S.C. 3161(h)(1)(F). For motions that require

a hearing,2 this subsection excludes the time between the filing

of the motion and the hearing on that motion, even if the delay

is overlong, inexplicable, or unreasonable. See Henderson v.

2It is often arguable whether a particular motion requires a
hearing. See generally United States v. Tannehill, 49 F.3d 1049,

1052 n.4 (5th Cir.), cert. denied, 116 S. C.t 167 (1995). Here,

the appellant requested a hearing on his motion, thus
acknowledging that one was appropriate. Consequently, we need
not discuss the factors that determine whether a given motion
"requires" a hearing.

6

United States, 476 U.S. 321, 329-30 (1986); United States v.

Johnson, 29 F.3d 940, 942-43 (5th Cir. 1994); United States v.

Clymer, 25 F.3d 824, 830-31 (9th Cir. 1994); United States v.

Noone, 913 F.2d 20, 27 n.10 (1st Cir. 1990), cert. denied, 500

U.S. 906 (1991). Thus, if the March 22 encounter comprises a

hearing within the purview of the Act, the district court

appropriately excluded all the time accrued after November 17,

1994.

The Act itself does not define the term "hearing," and

the case law on this point is relatively sparse. It is clear,

however, that due process rarely demands full evidentiary

hearings, see Doyle v. Secretary of HHS, 848 F.2d 296, 302 (1st

Cir. 1988) (collecting cases), and we are confident that

something less than a full evidentiary hearing will suffice to

engage the gears of 3161(h)(1)(F). Two recent Fifth Circuit

cases are instructive. In United States v. Tannehill, 49 F.3d

1049 (5th Cir.), cert. denied, 116 S. Ct. 167 (1995), the court

declared that, at a minimum, "the term includes a situation in

which the district court hears argument of counsel and considers

[those arguments] prior to making its ruling." Id. at 1053.

Utilizing this standard, the court held that a discussion of the

merits of the defendant's motion at the outset of trial

constituted a hearing for purposes of the Act. See id.

In United States v. Grosz, F.3d (5th Cir. 1996)

[No. 94-10922, 1996 WL 75726], a brief exchange concerning a

pending motion occurred between the district court and counsel

7

for the government (in which defense counsel, although present,

did not play a part). See id. at [1996 WL 75726 at *2].

Applying the Tannehill standard, the panel found this abbreviated

colloquy to be a hearing within the purview of the Act. See id.

at [1996 WL 75726 at *4]. The court said that a hearing

occurs whenever the district judge discusses the merits of a

motion with counsel for the party against whom the ruling on the

motion is ultimately rendered. See id.

In the case at hand, the trial court heard arguments

put forward by the appellant's counsel in open court, on the

record; questioned him; and gave him the opportunity to highlight

salient facts. The court then gave the prosecutor a similar

opportunity. In our view, this give-and-take among counsel and

the court, notwithstanding its relative brevity, is the essence

of what a hearing entails. And, moreover, there was good reason

for the exchange: the appellant had requested that the court

take evidence, and the court was not in an optimal position to

rule upon the appellant's suppression motion until it questioned

counsel and determined the need for, and the potential efficacy

of, an evidentiary hearing.

To say more would be to add hues to a rainbow. We hold

that a hearing is any on-the-record colloquy in which the

district court hears the arguments of counsel and considers those

arguments prior to deciding a pending motion. Measured by this

yardstick, the proceedings on March 22 constitute a hearing for

purposes of 18 U.S.C. 3161(h)(1)(F). It follows inexorably

8

that the district court properly excluded the entire period from

November 17, 1994 through March 22, 1995 (a date beyond the date

on which the appellant filed his motion to dismiss).3 See

Henderson, 476 U.S. at 330.

This ruling defenestrates the speedy trial claim.

Computing the total time elapsed between the date of the

appellant's first appearance and the date on which he filed his

motion to dismiss for want of a speedy trial (140 days), and

subtracting the portion of that time excludable due to the

pendency of the motion to suppress (118 days), it is abundantly

clear that trial commenced within the time frame mandated by the

Act.

B.
B.

The Motion to Suppress
The Motion to Suppress

The objection to the district court's disposition of

the motion to suppress has both substantive and procedural

aspects. We discuss them seriatim.

1. Probable Cause. A police officer may effect a
1. Probable Cause.

warrantless search of the interior of a motor vehicle on a public

thoroughfare as long as he has probable cause to believe that the

vehicle contains contraband or other evidence of criminal

activity. See, e.g., United States v. Martinez-Molina, 64 F.3d

3We join the Fifth Circuit, see Grosz, F.3d at n.7

[1996 WL 75726 at *9], in warning that we will not permit either
the district court or the prosecution to jerry-build a "hearing"
in order to thwart the concinnous operation of the Speedy Trial
Act. Here, however, the record contains no hint of such
contrivance, and, for that matter, the appellant has levelled no
such charge.

9

719, 726 n.5 (1st Cir. 1995); United States v. Panitz, 907 F.2d

1267, 1271 (1st Cir. 1990). In this instance, the appellant's

asseveration that the police lacked probable cause for the search

elevates hope over reason.

In assessing "whether the government has made a

sufficient showing of probable cause, a reviewing court must

examine the `totality of the circumstances.'" United States v.

Nocella, 849 F.2d 33, 39 (1st Cir. 1988) (quoting Illinois v.

Gates, 462 U.S. 213, 230 (1983)). On appeal, this assessment

entails acceptance of the lower court's factual findings unless

those findings are clearly erroneous, but necessitates plenary

review of the lower court's legal conclusions. See United States

v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994); United States v.

Rodriguez-Morales, 929 F.2d 780, 783 (1st Cir. 1991), cert.

denied, 502 U.S. 1030 (1992). Moreover, the law recognizes that

a vehicle search under this exception may encompass all areas of

the vehicle in which the suspected contraband is likely to be

found. See United States v. Maguire, 918 F.2d 254, 260 (1st Cir.

1990), cert. denied, 499 U.S. 950 (1991). Applying these

principles, it is readily apparent that the court below did not

err in finding probable cause and ratifying the search.

Tyrie's affidavit asserts unambiguously that he

detected an aroma of burnt marijuana when he first approached the

pickup truck. The case law is consentient that when a law

enforcement officer detects the odor of marijuana emanating from

a confined area, such as the passenger compartment of a motor

10

vehicle, that olfactory evidence furnishes the officer with

probable cause to conduct a search of the confined area. See

United States v. Johns, 469 U.S. 478, 482 (1985); United States

v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995); United States v.

French, 974 F.2d 687, 692 (6th Cir. 1992), cert. denied, 506 U.S.

1066 & 507 U.S. 978 (1993). Thus, Tyrie had a right to search

the entire passenger compartment of the pickup truck. See United

States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993).4

The appellant also assails the second phase of the

search (during which Tyrie located the gun and ammunition). That

search was lawful for three reasons. First, the extent of a

permissible search is often incremental. See, e.g., United States

v. Giannetta, 909 F.2d 571, 574, 577 (1st Cir. 1990). Here,

Tyrie's discovery of the marijuana gave him probable cause to

continue to hunt within the passenger compartment for more

contraband. See, e.g., Maguire, 918 F.2d at 260. Second, the

appellant cannot seriously dispute that when Tyrie spied the

marijuana, he had probable cause to arrest the truck's occupants.

See, e.g., United States v. Uricoechea-Casallas, 946 F.2d 162,

4The appellant's attempt to dilute the force of these cases
is disingenuous. He cites other decisions suggesting that the
existence of probable cause to search the passenger compartment
of a vehicle does not necessarily confer a right to search the
trunk. See, e.g., Nielsen, 9 F.3d at 1491. Expanding on this

theme, he then posits that Tyrie could not search behind the
seats in the pickup truck. The fly in this ointment is that the
space behind the seats, in which Tyrie found the marijuana, is
part of the truck's passenger area, and no amount of wordplay can
change that fact. Since the aroma of marijuana wafted from the
passenger area, that region became fair game for a drug search
under the automobile exception to the warrant requirement. See

United States v. Ross, 456 U.S. 798, 825 (1982).

11

166 (1st Cir. 1991). Having lawfully arrested the driver in the

course of a highway stop, the authorities may search the driver's

vehicle for contraband. See New York v. Belton, 453 U.S. 454,

460-61 (1981); United States v. Reyes-Mercado, 22 F.3d 363, 366

n.4 (1st Cir. 1994). Under this rule, the second phase of

Tyrie's search can be justified as incident to a lawful arrest.

Third, when a driver is lawfully arrested and thus disabled from

continuing his journey, the Constitution permits the police to

carry out a routine inventory examination incident to impounding

the vehicle. See Zapata, 18 F.3d at 978; United States v. Ramos-

Morales, 981 F.2d 625, 627 (1st Cir. 1991), cert. denied, 113 S.

Ct. 2384 (1993). In this case, the second phase of the search

fit comfortably within this integument.

On any of these bases, the gun and ammunition were

themselves the fruits of a lawful search and, hence, admissible

at trial. Accordingly, the district court did not err in denying

the motion to suppress.

2. Lack of an Evidentiary Hearing. The appellant next
2. Lack of an Evidentiary Hearing.

berates the trial court for two ostensible procedural blunders:

denying him an evidentiary hearing on his motion to suppress and

shunning its responsibilities under Fed. R. Crim. P. 12(g). The

criticism is unwarranted.

It is apodictic that a criminal defendant is not

entitled, as a matter of right, to an evidentiary hearing on

every motion that he deigns to file. See, e.g., Panitz, 907 F.2d

at 1273; United States v. Pellerito, 878 F.2d 1535, 1545 (1st

12

Cir. 1989). A hearing is required only if the movant makes a

sufficient threshold showing that material facts are in doubt or

dispute, and that such facts cannot reliably be resolved on a

paper record. See United States v. Lilly, 983 F.2d 300, 310-11

(1st Cir. 1992); Panitz, 907 F.2d at 1273. Most importantly, the

defendant must show that there are factual disputes which, if

resolved in his favor, would entitle him to the requested relief.

See, e.g., Lilly, 983 F.2d at 310-11. The district court has

considerable discretion in determining the need for, and the

utility of, evidentiary hearings, and we will reverse the court's

denial of an evidentiary hearing in respect to a motion in a

criminal case only for manifest abuse of that discretion. See

id. at 311.

In this instance the district court correctly concluded

that it would be pointless to convene an evidentiary hearing.

The finding of probable cause hinged on Tyrie's statement that he

smelled burnt marijuana when he first ventured near the pickup

truck. The appellant filed an affidavit in which he stated that

Tyrie did not mention the aroma of marijuana until he returned to

the vehicle a second time. On this basis, the appellant surmises

that Tyrie's reference to marijuana was pretextual, that is, that

Tyrie did not actually detect the fragrance of marijuana, but,

rather, having learned of the appellant's criminal record when he

checked the appellant's license and registration, proceeded to

concoct the story to justify his desire to search the truck. In

the appellant's view, an evidentiary hearing would have smoked

13

out the truth.

The asseveration is profoundly flawed. Even accepting

the substance of the appellant's affidavit as true, the affidavit

contains no facts that contradict the officer's direct statement

that he smelled burnt marijuana on his initial approach to the

truck. Whether Tyrie mentioned the marijuana when he first

detected the odor is hardly the point. It is fully consistent

with competent police work for a lone officer to call for

reinforcements when he discovers that something more than a

routine traffic stop may be in progress. By not tipping his hand

at the outset, Tyrie would merely be exercising reasonable

prudence. Against this backdrop, the bare assertion of pretext

does not create a factual conflict sufficient to justify an

evidentiary hearing. See, e.g., United States v. LaBonte, 70

F.3d 1396, 1412-13 (1st Cir. 1995) (explaining that a district

court need not convene an evidentiary hearing when presented with

"no more than conclusory prognostications and perfervid

rhetoric").

The appellant's claim that the district court violated

Fed. R. Crim. P. 12(g) is equally jejune. That rule does not

demand that the trial court hold an evidentiary hearing on every

affected motion. It simply requires the court to ensure that a

verbatim record is made of all proceedings and hearings,

including "such findings of fact and conclusions of law as are

made orally." Fed. R. Crim. P. 12(g). The transcripts of the

March 22 colloquy and the judge's subsequent denial of the motion

14

to suppress fully satisfy the strictures of the rule.

C.
C.

Sufficiency of the Evidence
Sufficiency of the Evidence

The appellant's sufficiency challenge implicates all

three counts of conviction. In respect to counts 1 and 2, he

suggests that there was inadequate evidence to show that he

knowingly possessed either the gun or the ammunition. Regarding

count 3, he adds that the government produced no evidence that

the gun had travelled in interstate commerce after having been

stolen. We discern no merit in these contentions.

We review the trial court's denial of a motion for

judgment of acquittal de novo. See United States v. Valle, 72

F.3d 210, 217 (1st Cir. 1995). The measure by which we size up

challenges to evidentiary sufficiency in a criminal case is a

familiar one: "If the evidence presented, taken in the light

most agreeable to the government, is adequate to permit a

rational jury to find each essential element of the offense of

conviction beyond a reasonable doubt, then the defendant's claim

fails." Id. at 216. In pursuing this inquiry, we resolve all

credibility conflicts to the government's benefit, and harmonize

all reasonable inferences with the jury's verdict. See United

States v. Taylor, 54 F.3d 967, 974 (1st Cir. 1995). By like

token, we concern ourselves with the weight and persuasive power

of the evidence, not its nature, for either direct or

circumstantial evidence, or any combination thereof, may suffice

to defeat a motion for acquittal. See United States v. Spinney,

15

65 F.3d 231, 234 (1st Cir. 1995).

1. Scienter. Turning first to counts 1 and 2, the
1. Scienter.

statute of conviction, 18 U.S.C. 922(g)(1), requires proof of

three elements: (1) that the defendant had a record of prior

felonious conduct, yet (2) knowingly possessed a gun (or

ammunition), (3) in circumstances that implicated interstate

commerce. See United States v. Powell, 50 F.3d 94, 101 (1st Cir.

1995). The appellant concedes that the government proffered

sufficient evidence to support findings beyond a reasonable doubt

anent the first and third of these elements but disputes the

sufficiency of the evidence regarding the second: his knowing

possession of the firearm and the ammunition. His plaint boils

down to a plea that the jury was duty bound to accept the only

direct testimony on the subject Nason's averment that he placed

the gun and ammunition in the truck, returned it only minutes

before the arrest, and never called the added contents to the

appellant's attention and not to go beyond it.

There are two major problems with this suggested

approach. First, Nason's story, even if believed, does not

necessarily exonerate the appellant; the latter might still have

discovered the contraband between the time when Nason returned

the truck and Tyrie flagged it down. Second, the jury was not

obliged to accept Nason's testimony in whole or in part, but

could instead draw reasonable inferences from the totality of the

circumstances. See, e.g., United States v. Olbres, 61 F.3d 967,

971 (1st Cir.), cert. denied, 116 S. Ct. 622 (1995); United

16

States v. O'Brien, 14 F.3d 703, 707 (1st Cir. 1994).

These problems are exacerbated by the other evidence in

the record. The circumstantial proof of knowing possession is

very strong. The appellant was both the owner and operator of

the vehicle and, from where he sat, he had easy access to the gun

(which seemed ready for immediate use) and the ammunition. Since

the appellant exercised dominion and control over the area in

which the gun and the ammunition were discovered, see United

States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993), the jury

was at liberty to find that he was in knowing constructive

possession of the weaponry. See United States v. Wight, 968 F.2d

1392, 1398 (1st Cir. 1992) (holding that "the element of `knowing

possession' under section 922(g)(1) may be established by proving

that the defendant was in constructive possession of a firearm");

see also United States v. Bergodere, 40 F.3d 512, 518 (1st Cir.

1994) (explaining that knowledge may be established from

circumstances attendant to constructive possession), cert.

denied, 115 S. Ct. 1439 (1995). In short, the jury's conclusion

concerning the appellant's knowing possession is eminently

supportable on this record.

2. Interstate Commerce. The appellant raises a more
2. Interstate Commerce.

focused challenge to his conviction on count 3. Bolstered by a

recent Ninth Circuit case, United States v. Cruz, 50 F.3d 714,

719 (9th Cir. 1995), he insists that under the statute of

conviction, 18 U.S.C. 922(j), it is an element of the offense

that the firearm travel in interstate commerce after being

17

stolen, and that the government's evidence here failed to nail

down this element.

The difficulty with this argument is twofold. In the

first place, we reject the notion that, to trigger 922(j), a

firearm must reenter the stream of interstate commerce after its

theft. This court turned aside a similar challenge under 18

U.S.C. 922(g) in United States v. Gillies, 851 F.2d 492, 493-95

(1st Cir.), cert. denied, 488 U.S. 857 (1988), and we find the

rationale in Gillies to be persuasive. Thus, consistent with

that rationale we hold that, under 922(j), it is enough if the

weapon floats in the stream of commerce at some point prior to

the commission of the offense of conviction. Accord United

States v. Honaker, 5 F.3d 160, 162 (6th Cir. 1993), cert. denied,

114 S. Ct. 1226 (1994). Because the appellant does not dispute

that the firearm travelled in interstate commerce before coming

to rest in his pickup, he cannot prevail.

The finishing touch is that there was evidence at trial

that the firearm travelled interstate as a stolen firearm. The

appellant's own witness, Nason, swore that he took the gun with

him from Massachusetts to New Hampshire only a few days before

the police found the weapon in the appellant's possession (and

several years after the gun had been reported stolen). Thus,

even if post-theft travel were an element of the offense, the

verdict would not be undercut.5

5The fact that the evidence of interstate travel was adduced
in the defense case, rather than in the prosecution's case, is of
no consequence. The court of appeals may properly consider all

18

III
III

Conclusion
Conclusion

We need go no further. Because the government brought

the appellant to trial within the period prescribed by the Speedy

Trial Act, and no other error in the proceedings appears, the

judgment below must be

Affirmed.
Affirmed.

evidence presented when confronting a sufficiency challenge. See

United States v. Arache, 946 F.2d 129, 138 (1st Cir. 1991), cert.

denied, 502 U.S. 948 (1992).

19