United States Court of Appeals
For the First Circuit
No. 06-2133
UNITED STATES OF AMERICA,
Appellee,
v.
EVANS ETRONS STROMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Tina Schneider, by appointment of the court, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
August 22, 2007
BOUDIN, Chief Judge. Evans Stroman appeals from his
conviction for being a felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1) (2000), raising arguments under the Fourth and Fifth
Amendments. The factual background is undisputed but some detail
is needed to frame the issues.
Just after 5 a.m., on July 15, 2003, police in Lewiston,
Maine, received a call informing them that two black men wearing t-
shirts were attempting to break down the front door of an apartment
building at 287 Bates Street, near the high-crime neighborhood of
Kennedy Park. The caller indicated that one of the two men was
named BJ, which the officers took as a reference to BJ Almeida, a
repeat offender for whom an arrest warrant was outstanding.
At the scene, police found a single black man (later
determined to be BJ's brother Jose Almeida) standing on the porch
at 287 Bates Street, but he refused to answer their questions,
indicating only that he was from Massachusetts. Officers who had
prior experience with BJ Almeida confirmed that this was not BJ,
and so the police split up to continue the search.
Knox Street runs parallel to Bates Street just one block
over. There, about three hundred feet from the 287 Bates Street
apartment building, Lt. Donald Mailhot saw a car with Massachusetts
plates, oddly parked near the back stairway to another Bates Street
apartment building. Stroman (who is black) and a woman were
sitting in the back-seat of the car. At approximately the same
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time as Mailhot left his police cruiser to approach the vehicle, a
radio dispatch announced that another officer had BJ Almeida in
custody.
As Mailhot approached the parked car, Stroman got out and
began to walk in the opposite direction. He was told to stop, but
did not. Mailhot then sought to restrain Stroman, who broke free
and fled, leaving his leather coat in the officer's hands. Mailhot
radioed the other officers with Stroman's description, and he was
discovered shortly after, hiding on the fourth floor of a building
on Knox Street.
Stroman was handcuffed and frisked, and after finding a
knife the police arrested him. He was taken to a nearby jail,
where a more complete search revealed crack cocaine inside his
sweatshirt. Learning from Massachusetts police that Stroman was
known to carry a gun, one of the officers then returned to the spot
where Stroman had been found and discovered, inside a partially
ajar ceiling tile directly above, a loaded handgun wrapped in a
bandanna.
Because a fingerprint on the gun did not match Stroman's,
Stroman was at the outset charged only with offenses related to the
drugs and knife; but some five months later in a prison interview
with agents Stroman confessed (after Miranda warnings) that he had
been holding the gun for BJ Almeida. According to the confession,
Stroman had traveled from Massachusetts with BJ, who had left the
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car to confront his girlfriend living at 287 Bates Street over a
personal matter.
Stroman was then charged in federal court with being a
felon in possession of a firearm. He sought to suppress both the
gun and the confession on fourth amendment grounds, arguing that
both constitute fruits of a poisonous tree (the tree being his
initial stop and attempted frisk by Mailhot outside the car). A
magistrate judge recommended rejection of Stroman's suppression
motion after an evidentiary hearing, and the district judge upheld
that recommendation.
At trial, the prosecutor relied on Stroman's confession
and on evidence of Mailhot's chase of Stroman and his arrest and
the later discovery of the gun overhead. Testimony also showed
that Jose Almeida had made urgent efforts to retrieve Stroman's
coat from Mailhot after Stroman fled and that he had said to
Stroman at the police station that the police were "lucky they
didn't get 10" (the gun had a clip that carried ten bullets).
Stroman did not testify but offered a fingerprint expert
confirming that the print on the gun was not his. In closing
arguments, the prosecutor argued that Stroman's confession was
reliable, pointing to various elements that were either
affirmatively corroborated or "not contradicted." The defense
objected, at least in part, to these "not contradicted" references
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as violating Stroman's fifth amendment rights; but the judge
rejected the claim.
After considerable deliberation, the jury convicted
Stroman, who was sentenced to 35 months in prison. He now appeals,
contesting the admission of his confession and gun and arguing that
the prosecutor's "not contradicted" comments were improper. On
review, raw factual determinations are tested for clear error and
legal principles de novo, United States v. Coplin, 463 F.3d 96, 100
(1st Cir. 2006), cert. denied, 127 S. Ct. 1320 (2007), while law
application issues sometimes but not always are reviewed with some
but not automatic deference. Coady Corp. v. Toyota Motor
Distribs., 361 F.3d 50, 57 (1st Cir. 2004).1
We start with Stroman's fourth amendment claim.
Stroman's basic argument runs as follows: Mailhot lacked reasonable
suspicion to stop and attempt to frisk him outside the car on the
morning of his arrest. It was only as a result of that illegal
stop that the gun was ultimately discovered, and similarly, the
confession would never have been extracted in the absence of the
allegedly unconstitutional frisk and subsequent arrest and
imprisonment.
1
Application issues--classing a unique set of facts under a
general standard--are in formal terms legal rulings. Often a
measure of deference is shown to the factfinder, partly on the
ground that the rulings are often dependent on factual nuance,
Jackson v. United States, 156 F.3d 230, 232-33 (1st Cir. 1998); but
occasionally (for policy reasons of its own) the Supreme Court
insists on de novo review as to a specific issue.
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The government says that Stroman has no "standing" to
object to the seizure of the gun, arguing that Stroman lacked any
reasonable expectation of privacy in the gun--first, because he
abandoned it, see Abel v. United States, 362 U.S. 217, 241 (1960),
and second, because even if he did not abandon it, he left it in a
common area of a shared residential building, see United States v.
Brown, 169 F.3d 89, 92 (1st Cir. 1999).
This objection does not refer to Article III standing--
which is clearly present--but essentially to the substantive
question whether Stroman had a sufficient personal or privacy
interest in the gun to trigger fourth amendment protection against
its seizure. United States v. Kimball, 25 F.3d 1, 5 n.1 (1st Cir.
1994). But he is not relying on this kind of fourth amendment
claim: his objection is to his allegedly illegal seizure, of which
the gun and confession are arguably the fruits. Wong Sun v. United
States, 371 U.S. 471, 487-88 (1963).
However, the claim on the merits is easily dispatched.
We need not consider whether Stroman's seizure is sufficiently
linked with the gun and confession, cf. United States v. Kornegay,
410 F.3d 89, 93-94 (1st Cir. 2005), because we think that the
seizure itself constituted a Terry stop for which there was ample
justification. Unlike an arrest, for which probable cause is
required, a Terry stop--which is less intrusive--requires only
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reasonable suspicion of Stroman's involvement in wrongdoing. Terry
v. Ohio, 392 U.S. 1, 21 (1968).
If so, Mailhot was entitled to halt and briefly question
Stroman, United States v. Sharpe, 470 U.S. 675, 686 (1985), and the
attempt to frisk him would itself be justified as a self-protection
measure: an officer approaching a suspect in connection with a
break-in is entitled to ensure that no weapons are hidden
underneath a heavy leather coat. Terry, 392 U.S. at 27. Whether
(on the undisputed facts) there was a basis for reasonable
suspicion is one of those law application issues that we have been
told to review de novo. Ornelas v. United States, 517 U.S. 690,
699 (1996).
Stroman says that when Mailhot approached the car, BJ
Almeida and another man were already in custody (only two men had
been allegedly involved in the break-in); but Mailhot said that he
did not know this and the magistrate judge so found. Still,
Stroman argues he and Almeida look nothing alike; that he was not
wearing a t-shirt (as reported of the break-in suspects); and that
he was accompanied by a woman (the report of the break-in had not
mentioned a woman).
Yet the car, oddly parked near the location of the
alleged crime, bore Massachusetts plates (the reported break-in was
associated with a Massachusetts suspect); two individuals were in
the back-seat at a very early hour of the morning; and one of them
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(Stroman) left the car as the officer approached, walking in the
opposite direction and ignoring directions to stop. Further,
Stroman was wearing a leather coat in July, a fact that the officer
reasonably considered curious and perhaps suggestive of hidden
weapons.
All of these elements have been noted in cases as
relevant--the car location, Kimball, 25 F.3d at 6, the "unprovoked
flight," Illinois v. Wardlow, 528 U.S. 119, 125 (2000), the unusual
dress, United States v. Maguire, 359 F.3d 71, 77 (1st Cir. 2004)--
and common sense would make them relevant anyway. The high-crime
nature of the neighborhood is also rationally relevant although
sometimes debated on policy grounds.2 Regardless of the
neighborhood, Mailhot had ample reason to detain Stroman briefly.
Turning to the fifth amendment issue, we put to one side
the government's claim that Stroman did not fully preserve his
objection because he complained during the closing about only one
of the prosecutor's several "not contradicted" comments and then
made a broader objection only after the jury had retired. On
balance, we think that defense counsel made his concerns known once
it became clear that the prosecutor was using the debatable
language as a theme, and that here that was sufficient.
2
Compare, e.g., United States v. Trullo, 809 F.2d 108, 111
(1st Cir. 1987) (majority opinion), cert. denied, 482 U.S. 916
(1987), with id. at 116 (Bownes, J., dissenting). See also United
States v. Goddard, No. 05-3080, 2007 U.S. App. LEXIS 14828 at *18,
*35 (D.C. Cir. June 22, 2007) (Brown, J., dissenting).
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Although the fifth amendment's text precludes only
legally compelled self-incrimination (i.e., holding reticent
defendants in contempt), the Supreme Court announced in Griffin v.
California, 380 U.S. 609 (1965), that "comment on the refusal to
testify" burdens the constitutional privilege and is therefore
prohibited. Id. at 614. Thus the judge may not instruct, or the
prosecutor ask, a jury to take the defendant's exercise of his
fifth amendment rights as an implication of guilt.
Griffin itself concerned direct and pointed references to
a defendant's lack of testimony. Indirect reference, under certain
circumstances, is also within the ban. We have said that the test
is
whether, in the circumstances of the
particular case, the language used was
manifestly intended or was of such character
that the jury would naturally and necessarily
take it to be a comment on the failure of the
accused to testify.
United States v. Lilly, 983 F.2d 300, 307 (1st Cir. 1992) (quoting
United States v. Glantz, 810 F.2d 316, 322 (1st Cir. 1987), cert.
denied, 482 U.S. 929 (1987)) (internal quotation marks omitted);
see also United States v. Cotnam, 88 F.3d 487, 497 (7th Cir. 1996),
cert. denied, 519 U.S. 942 (1996).
At the same time, the prosecutor is entitled to draw the
jury's attention to the balance of evidence on contested issues.
After all, putting on the government's case is a sort of compulsion
of the defendant to answer it; and the government "must also be
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free to engage in normal advocacy so long as it does not point a
finger at the accused's remaining silent in the courtroom." United
States ex rel. Leak v. Follette, 418 F.2d 1266, 1268 (2d Cir. 1969)
(Friendly, J.), cert. denied, 397 U.S. 1050 (1970). More recently,
the Supreme Court itself warned against extending "broad dicta" in
Griffin so as to deny the prosecutor "the opportunity to meet
fairly the evidence and arguments" of the defense. United States
v. Robinson, 485 U.S. 25, 33 (1988).
Indeed, in Robinson, the Supreme Court expressly
qualified Griffin and carved out an exception for prosecutors who
directly and deliberately refer to a defendant's lack of testimony
while "fairly responding to an argument of the defendant."
Robinson, 485 U.S. at 34. In that case, defense counsel claimed
that defendant had never been given a chance to tell his side of
the story. In other words, there are pressures in both directions,
and the effort is to seek a practical resolution.
Some of our earlier case law might seem to support a
mechanical test whereby error occurred wherever a prosecutor
referred to a lack of defense evidence and that evidence could only
have been supplied by the defendant himself, United States v.
Flannery, 451 F.2d 880, 882 (1st Cir. 1971), but such a reading
would hardly comport with Robinson. We think that a better guide
is our later and more nuanced test in Lilly, taking account of
considered intention and inevitable effect in the context of the
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particular facts and of Robinson's caution as to the prosecutor's
right to a fair reply. Accord United States v. Francis, 82 F.3d
77, 79 (4th Cir. 1996), cert. denied, 517 U.S. 1250 (1996).
In this instance, the prosecutor was faced with a claim
that the confession was flawed and unreliable due to the agents'
unfairness and misunderstandings by the defendant, and that little
direct evidence linked Stroman to the gun: it was not on his person
and his fingerprints did not match the one on the gun. Although
the prosecutor had useful circumstantial evidence (Stroman's
flight, the location of the gun, Jose Almeida's remark), the
prosecutor had special reason to attempt to corroborate the
confession.
Further, defense counsel repeatedly attacked the
reliability of the confession in cross examination and in the
closing argument, and the judge instructed the jurors that when
considering the confession they should consider "circumstances
tending to corroborate or contradict the version of events
described in the statement." The prosecutor's response was to take
elements of the confession one by one and to summarize the
government's evidence for the fact (e.g., that Stroman drove to
Maine with the Almeida brothers) and then point to what was or was
not on the other side.
In this case, other witnesses, like the Almeida brothers
or the woman in the back-seat of the car, could have contradicted
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many elements of the confession if they were untrue, although
admittedly not all: Stroman's confession that he hid the gun when
he was alone in the building, for example, might realistically have
been difficult to contradict without Stroman's own testimony. If
the comments are taken together, this is far from a case of naked
finger-pointing at the defendant.
The prosecutor does take a risk whenever the "not
contradicted" argument is made. But, in this case, the prosecutor
had a perfectly legitimate reason for summing up the evidence on
each side. There is nothing like a "manifest[] inten[t]" on the
prosecutor's part to focus the jury's attention on the defendant's
silence; nor do we think that the jury would "naturally and
necessarily take [the remarks] to be a comment on the failure of
the accused to testify." Cf. United States v. Laboy-Delgado, 84
F.3d 22, 31 (1st Cir. 1996).
Affirmed.
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