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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