United States v. McFarlane

United States Court of Appeals
For the First Circuit

No. 06-1779

UNITED STATES OF AMERICA,

Appellee,

v.

CLIVE MCFARLANE, a/k/a CLIVE MCFARLAND,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Lynch, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

Roger Witkin for appellant.
Paul R. Moore, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Cynthia A. Young,
Assistant United States Attorney, were on brief, for appellee.

July 12, 2007
 HOWARD, Circuit Judge. Clive McFarlane was convicted of

one count of being a felon in possession of ammunition in violation

of 18 U.S.C. § 922(g)(1) and was sentenced to 180 months of

imprisonment. McFarlane appeals, claiming that the district court

erroneously denied his motion to suppress and committed several

trial errors. We affirm.

I.

The government presented the following evidence at trial.

Just before 7 p.m. on April 25, 2005, David Delehoy, a detective

with the Brockton, Massachusetts Police Department, was traveling

through a high-crime section of Brockton on his way to work. While

stopped at a traffic light, Detective Delehoy, who was dressed in

plain clothes and driving an unmarked car, saw a group of people

standing in an abandoned parking lot and heard three loud

explosions, which he thought were gun shots.

Detective Delehoy turned in the direction from which he

thought the gun shots originated and saw a man sprinting away from

the group in the parking lot. He followed the man, later

identified as Antwone Moore, before losing sight of him behind

several buildings. After a few seconds, Delehoy again spotted

Moore, this time walking rapidly. At the same time, Delehoy also

saw a second male, later identified as Clive McFarlane, following

approximately 100 feet behind Moore.

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 Delehoy observed Moore looking repeatedly over his

shoulder at McFarlane. Soon, Moore began running across another

vacant lot. Delehoy sped ahead, stopped his car at the end of the

lot, and asked Moore if he needed help or a ride. Delehoy left his

car, identified himself as a police officer, showed his badge to

Moore, and ordered him to show his hands. Moore, who appeared

relieved by Delehoy's presence, said that McFarlane was trying to

shoot him.

Delehoy then saw McFarlane approach a set of trash cans

along the path Moore had traveled. Delehoy, who had an

unobstructed view of McFarlane, saw him remove a liner from the

trash can, lean into the can with both arms, and stand up to

replace the liner. This led Delehoy to believe that McFarlane

might have put something in the can. Delehoy, with his gun drawn

and badge displayed, moved toward McFarlane and ordered him to

raise his hands and get down on the ground. McFarlane shouted

profanity at Delehoy but complied with the order. Delehoy called

for help and remained several feet from McFarlane until another

officer arrived.

Seconds later, Officer Robert Smith arrived on the scene

and, at Delehoy's command, handcuffed McFarlane. After McFarlane

was handcuffed, Delehoy went to the trash can into which McFarlane

had reached. He removed the liner and found a revolver containing

six spent ammunition cases.

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 At trial, McFarlane testified in his own defense. He

stated that he and Moore had a physical altercation in the

abandoned parking lot, during which Moore attempted to shoot him

with the revolver that was later found in the trash can. McFarlane

explained that Moore then fled, but McFarlane followed, stopping to

look in the trash can out of curiosity.

II.

A. Motion to Suppress

Prior to trial, McFarlane filed a motion to suppress,

claiming that his detention and arrest violated the Fourth

Amendment to the Constitution because there was neither probable

cause for the arrest nor reasonable suspicion for the detention.

After an evidentiary hearing,1 the district court denied the

motion, concluding that there was reasonable suspicion to detain

McFarlane for an investigative stop under Terry v. Ohio, 389 U.S.

950 (1967), and that Delehoy permissibly ordered McFarlane to the

ground because he may have been dangerous.

In considering the denial of a motion to suppress, we

review questions of law de novo and factual findings for clear

error, see United States v. Vongkaysone, 434 F.3d 68, 73 (1st Cir.

2006), and will affirm the district court's decision if any

reasonable view of the evidence supports it, see United States v.

1
The evidence presented at the hearing was identical in all
material respects to the trial evidence described earlier.

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Garcia, 983 F.2d 1160, 1167 (1st Cir. 1993). In resolving

McFarlane's challenge, we bypass the district court's Terry stop

analysis because we conclude, in accord with the government's

alternative position, that Delehoy had probable cause to arrest

McFarlane at the moment he ordered him to the ground.2

An arrest does not contravene the Fourth Amendment's

prohibition on unreasonable seizures so long as the arrest is

supported by probable cause. See United States v. Fiasconaro, 315

F.3d 28, 35 (1st Cir. 2002). "Probable cause exists when police

officers, relying on reasonably trustworthy facts and

circumstances, have information upon which a reasonably prudent

person would believe the suspect committed or was committing a

crime." United States v. Burhoe, 409 F.3d 5, 10 (1st Cir. 2005).

The inquiry into probable cause to support an arrest focuses on

what the officer knew at the time of the arrest, and should

evaluate the totality of the circumstances. See United States v.

Jones, 432 F.3d 34, 41 (1st Cir. 2005).

McFarlane contends that there was no basis for his arrest

when Delehoy ordered him to the ground because at that point the

only information available to Delehoy was Moore's uncorroborated

statement that McFarlane had tried to shoot him. We disagree.

2
In resolving McFarlane's challenge on the basis of probable
cause, we do not mean to imply that the district court's analysis
was incorrect but only that probable cause provides a more
straightforward ground for affirmance.

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 When Delehoy made the arrest, he had substantially more

information than Moore's word that a crime had taken place. Before

the arrest, Delehoy heard several gun shots from a close distance

and then observed McFarlane following Moore in what appeared to be

a chase. He saw Moore sprinting away from McFarlane and looking

back over his shoulder several times to check on McFarlane's

distance. He also saw what he thought was McFarlane's attempt to

hide an object in a trash can by removing a liner, placing both

hands in the can, and then replacing the liner. See United States

v. Meade, 110 F.3d 190, 198-99 (1st Cir. 1997) (noting that

suspicious maneuvers are relevant to the probable cause inquiry).

After watching the chase, Delehoy stopped Moore and

identified himself as a police officer. Moore appeared relieved by

the presence of a police officer and informed Delehoy that

McFarlane had tried to shoot him.

A statement from a source can constitute the basis for

probable cause, even if the source is previously unknown to the

officer, so long as there is a sufficient basis for crediting the

source's reliability. See Vongkaysone, 434 F.3d at 71. Here,

there was a sufficient basis for Delehoy to credit Moore's

statement. Moore made the statement to Delehoy face-to-face, which

supports the statement's reliability because the face-to-face

nature of the encounter permitted Delehoy to observe Moore's

apparent relief when he realized that a police officer was present.

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This conduct was consistent with Moore's claim that someone was

trying to shoot him. See United States v. Romain, 393 F.3d 63, 73

(1st Cir. 2004) ("A face-to-face encounter provides police officers

the opportunity to perceive and evaluate personally an informant's

mannerisms, expressions and tone of voice and, thus, to assess the

informant's veracity more readily . . . ."). The nature of the

encounter also allowed Delehoy to learn Moore's identity and

appearance so he could hold him responsible if the information

provided later turned out to be false. See Florida v. J.L., 529

U.S. 266, 270-71 (2000). Furthermore, after Moore made the

statement, Delehoy saw McFarlane appear to hide something in the

trash can, which was consistent with Moore's assertion that

McFarlane had tried to shoot him. See United States v. Greenburg,

410 F.3d 63, 68 (1st Cir. 2005) (stating that an officer's

observation of conduct consistent with the informant's tip supports

the tip's veracity).

In sum, Delehoy saw a chase between two men after hearing

gun shots and then learned from one participant of the chase that

the other had tried to shoot him. The circumstances under which

Moore made this statement to Delehoy supported its veracity, as did

McFarlane's peculiar conduct in going to the trash can.

"[P]robable cause is a 'common sense, nontechnical conception[]

that deal[s] with the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

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technicians, act.'" United States v. Meade, 110 F.3d 190, 198 n.11

(1st Cir. 1997) (quoting Ornelas v. United States, 517 U.S. 690,

695 (1996) (alterations in original; internal quotation marks and

additional citation omitted)). Under this standard, we conclude

that Delehoy had probable cause to arrest McFarlane after he saw

him go into the trash can. The motion to suppress was correctly

denied.

B. Jury Instructions

McFarlane also challenges two aspects of the district

court's jury instructions. First, he claims that the court did not

adequately explain the concept of constructive possession as

applied to this case, and second, he challenges the district

court's instruction concerning the significance of his indictment

in the jury deliberations.

We discern no abuse of discretion in the form of the

constructive possession instruction. After determining that the

facts could permit a guilty verdict under either an actual or

constructive possession theory, the district court provided the

following instruction concerning constructive possession:

[C]onstructive possession means power -- the
power and intention at any given time to
exercise control or dominion of the object.
Let me give you an example. If my son asks me
to take his car to the repair shop, I'm
driving it to the repair place. I have actual
possession of the car. I get there, I turn the
car over to the repair people. At that point,
they have actual possession of the car. I have
constructive possession. I intend that they do

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 certain things with the car, and I have the
ability to take it away if I want to. So that
is called constructive possession. The repair
people have actual possession until such time
as they're done with the car and I pick it up
again.
* * *
Now, understand that ownership is not required
with respect to possession. So that's why I
carefully told you I was taking my son's car.
He's the owner. I have possession while I
take it there. Once I give it to the repair
people, they have actual possession. I have
constructive possession. So ownership is
wholly irrelevant to this. Now, possession,
where it's actual or constructive, does not
have to be continuous, nor does it have to be
for any particular length of time, even a short
period is enough.

McFarlane objected to the constructive possession

instruction, asserting that it improperly permitted the jury to

convict on a constructive possession theory, even if the jury

believed his testimony that he merely found the gun in the trash

can. The court overruled the objection.

During deliberations, the jury submitted two questions to

the district court concerning constructive possession. The jury

asked (1) "Does looking for the gun constitute intent to exercise

control and dominion over the gun?" and (2) "Does opening the trash

bag, with the intent to find the gun, which is indeed there,

constitute putting himself in the position to have the power to

exercise control and dominion over the gun?" After a discussion

with counsel, the court determined that providing specific answers

to these questions would be inappropriate because the answers could

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be interpreted by the jury as providing the court's view as to what

the evidence demonstrated. Instead, the court provided the

following, more general, supplemental instruction:

The very short answer to that is that it is for
you to decide each of these questions. As I
told you, possession requires, and you clearly
understand this, both the ability and intention
to take physical control of an object. You are
asking me to decide whether a particular act by
itself constitutes intent to exercise control
and whether . . . doing something with that
intent then puts the defendant in the position
of having the power to exercise control.

* * *
And all I can tell you is that you need to look
at all of the evidence of what occurred. You
need to look -- particularly with respect to
intent -- you need to look at everything the
defendant did, at everything he said, and the
circumstances that existed at the time that he
acted and spoke and decide from all of that
whether he had the intent at a particular point
in time that you're considering to exercise
control over the object.

* * *

And similarly, with respect to his ability, his
power to exercise control, you need to look at
the whole thing and then you need to decide.
I can't [tell you] whether he did indeed have
the power to exercise control. You need to
look at all the facts that existed at the
particular moment in time and decide that
question.

McFarlane asserts that this instruction was erroneous and

prejudicial because it did not describe to the jury the way in

which the definition of constructive possession related to the

specific facts of this case. In particular, in light of his

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contention that he just happened upon the ammunition when looking

into the trash can (and his view that the jury questions at least

suggested that they accepted this theory), he argues that the

district court should have instructed that "mere curiosity . . .

coupled with a direct look at the gun that held the subject

ammunition, does not establish constructive possession of the

ammunition."

Because this challenge concerns the form and wording of

the instructions, we review them for abuse of discretion.

See United States v. Tom, 330 F.3d 83, 91 (1st Cir. 2003). In

formulating jury instructions, a district court is not required "to

parrot the language proffered by the parties." United States v.

Glaum, 356 F.3d 169, 178 (1st Cir. 2004). Within wide margins, the

district court maintains discretion in the precise manner that it

explains legal concepts to the jury. Id. We consider only

"whether, taken as a whole, the court's instructions fairly and

adequately submitted the issues in the case to the jury." Tom, 330

F.3d at 91.

The constructive possession instruction accurately

described the elements required for a conviction under this theory.

As they indicated, a conviction for constructive possession

requires proof that a "person knowingly has the power and intention

at a given time to exercise dominion over an object . . . ."

United States v. Gobbi, 471 F.3d 302, 309 (1st Cir. 2006). The

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district court also provided a cogent, everyday example of

constructive possession to aid the jury's understanding. The court

decided, however, not to apply the definition of constructive

possession to the facts of the case for fear that such an

instruction would interfere with the jury's fact finding role.

This fear was warranted. "[T]hough a trial court is

permitted to marshal the evidence for the jury and, if it chooses,

to comment on it, the court is not permitted to impose its own

opinions on the jury or present its own theories when they are not

strongly grounded in the evidence." Ostrowiski v. Atl. Mut. Ins.

Cos., 968 F.2d 171, 185 (2d Cir. 1992). Here, the main dispute at

trial was over McFarlane's intent in going into the trash can. The

court was properly concerned that describing various versions of

the facts (and the intentions that might be inferred from them),

and then instructing whether a conviction for constructive

possession was warranted under each particular version, would

intrude on the jury's function to find the facts and draw the

inferences from them. Under these circumstances, the district

court's concern was reasonable. The court therefore did not abuse

its discretion by rejecting the more specific instructions sought

by McFarlane.

McFarlane's second challenge to the jury instructions

concerns the instruction on the appropriate use of the indictment.

The court told the jury:

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 Now, the only other thing I want to mention is
that you will have with you in the jury room a
copy of the indictment. Understand, again,
that the indictment is nothing more than the
accusation. It is the document that contains
the accusation. It is not evidence of guilt,
it is not proof of guilt. It is simply the
accusation, and you should not use it in
determining whether the government has proven
him guilty or not.

* * *

It is a judgment by an earlier, larger jury
that there's probable cause to believe the
witness -- that the defendant did this, but it
is not evidence of guilt, it is not proof of
guilt. Indeed, the defendant is, under the
Constitution and laws of this country, entitled
to what we call the presumption of innocence.
But effectively, that means that he is innocent
until the government proves him guilty beyond
a reasonable doubt. And because he is
innocent, he doesn't have to prove his
innocence. (Emphasis added.)

McFarlane claims that the statement that a larger jury (i.e., the

grand jury) had heard the matter and concluded that there was

probable cause to believe that he had committed the crime was

prejudicial because it misled the petit jury into believing that

the case already had been resolved against him. McFarlane did not

object to this instruction before the district court, however, and

therefore we review it for plain error only. See United States v.

Gonzales-Velez, 466 F.3d 27, 34-35 (1st Cir. 2006).

Under plain error review, the defendant must show a clear

error that affected his substantial rights and undermined the

integrity, fairness or public reputation of the judicial

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proceedings. See United States v. Antonakopoulos, 399 F.3d 68, 77

(1st Cir. 2005). McFarlane does not prevail under this "demanding

standard." United States v. Colon Osorio, 360 F.3d 48, 51 (1st

Cir. 2004).

It is long settled in this circuit that "subject to a

proper covering instruction, whether the indictment should be given

to the jury for use during its deliberations is within the

discretion of the trial court." United States v. Medina, 761 F.2d

12, 21-22 (1st Cir. 1985). The district court's statement that a

"larger jury" had found probable cause, if considered in isolation,

could mislead a petit jury into according significance to the grand

jury's action. But we do not review jury instructions in

isolation; we review the charge as a whole. See United States v.

DeMasi, 40 F.3d 1306, 1317 (1st Cir. 1994). The charge read in its

entirety made it clear that the indictment was not evidence of

guilt. The court instructed the jury that the indictment was only

an accusation that could not be used as proof of guilt and that the

defendant enjoyed a presumption of innocence at all times. Indeed,

the instruction given here is similar to a covering instruction

that we approved as adequate to guard against the jury’s using the

indictment as evidence. See United States v. Glantz, 847 F.2d 1,

10-11 (1st Cir. 1988).3 There was no plain error.

3
The instruction in Glantz stated:

You must understand the effect of an

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 C. The "A/K/A" Portion of the Indictment

Finally, McFarlane claims that the indictment submitted

to the jury was prejudicial because it included an alias. The

indictment charged "Clive McFarlane, a/k/a Clive McFarland."

McFarlane claims that it was prejudicial error for the alias not to

be removed from the indictment before it was submitted to the jury.

He asserts that the alias had nothing to do with the case and

therefore it prejudiced the jury's deliberation to learn of the

alias. McFarlane did not preserve this objection below, and thus

our review is again limited to plain error.

Where the use of an alias is important to the

government's case, its submission to the jury as part of the

indictment is permissible. See United States v. Candelaria-Silva,

166 F.3d 19, 33 (1st Cir. 1999). But this practice has been

discouraged where the alias is irrelevant. E.g., United States v.

Wilkerson, 456 F.2d 57, 59 (6th Cir. 1972). Even assuming that

allowing the indictment to go to the jury without redacting the

alias was plain error, McFarlane has not demonstrated that the

indictment. It is only an accusation. The
fact that it has been brought is totally
meaningless so far as your task is concerned.
It may not be the basis of any suggestion of
guilt. All that it does is to bring this
matter before you for your determination.
Beyond that, it has no significance whatever
from the point of view of guilt or innocence.

Id.

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error affected his substantial rights. The indictment was not

referenced by the government during the trial or by the court in

its instructions. Indeed, at no point was the alias brought to the

jury's attention. See People v. Romero, 694 P.2d 1256, 1268 (Col.

1985) (finding no plain error under similar facts). In these

circumstances, it would be pure speculation to conclude that the

listing of the alias in the indictment had any effect on

deliberations. Such speculation is insufficient to ground a

successful claim that a clear error affected the defendant's

substantial rights. See generally Anontakopoulos, 399 F.3d at 78

(observing that, even under the most permissive articulation of the

plain error standard by the Supreme Court, the defendant must show

a "reasonable probability" that the error affected the outcome of

the district court proceeding in order to demonstrate an effect on

substantial rights).

III.

For the reasons stated, McFarlane's conviction is

affirmed.

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