United States v. Allen

United States Court of Appeals
For the First Circuit

No. 08-1451

UNITED STATES OF AMERICA,

Appellee,

v.

DARRELL D. ALLEN,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Neil S. Tassel, with whom Gary G. Pelletier and Denner
Pellegrino, LLP were on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

July 22, 2009
 LIPEZ, Circuit Judge. Pursuant to a conditional guilty

plea which preserved his right to challenge the district court's

suppression rulings, appellant Darrell D. Allen was sentenced to

180 months in prison for being a felon in possession of a firearm.

In his sole argument on appeal, citing disputed material facts, he

claims that the court erred by failing to hold an evidentiary

hearing before denying his motion to suppress certain statements

and physical evidence. Unfortunately for appellant, he did not

generate the supposedly disputed material facts until he submitted

material in support of a motion for reconsideration. We conclude,

therefore, that the district court did not abuse its discretion in

ruling on appellant's motion to suppress without a hearing and in

denying his motion for reconsideration of that order.

I.

A. Procedural Background

On June 7, 2006, a federal grand jury in the District of

Massachusetts returned an indictment charging appellant with being

a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). On November 3, 2006, appellant filed a motion to

suppress the firearm and ammunition seized by Boston police

officers on May 28, 2005, the night of his arrest, as well as

certain statements he made to Officer John Coyne that evening. The

government filed its opposition to the motion on November 16, 2006.

On February 8, 2007, without holding an evidentiary hearing, the

-2-
district court granted in part and denied in part the motion to

suppress, prompting appellant to file, on February 27, 2007, a

motion for reconsideration, with a supplemental affidavit and

exhibits. The district court was unpersuaded and denied the motion

for reconsideration on May 10, 2007.

Appellant entered his guilty plea on June 7, 2007. Under

the terms of the plea agreement, Allen retained the right, which he

now exercises, to appeal the district court's suppression ruling.

He was sentenced on March 5, 2008, to 180 months (15 years) in

prison, the mandatory minimum sentence for the charged offense, and

three years of supervised release.

B. Factual Background

We begin by describing the record before the district

court at the time of defendant's original motion to suppress,

noting purportedly disputed facts where relevant.

On May 28, 2005, Lieutenant Luis Cruz, Sergeant Felipe

Colon, and Officer Ivan Bermejo, all of the Boston Police

Department, were on patrol in an unmarked police cruiser in the

Roxbury neighborhood of Boston, Massachusetts. At approximately

1:00 a.m., while driving down Blue Hill Avenue, they saw two men,

later identified as appellant and Balgene Samuels, drinking from a

clear bottle of beer. The officers turned their car around and

returned to the location where they had seen the two men. The

officers observed two cars parked nearby on Maywood Street; a

-3-
Mercedes Benz CLK 320 Sedan, and a Ford Expedition sports utility

vehicle. According to Lieutenant Cruz's affidavit, as the police

approached the men, Lieutenant Cruz noticed a half-full bottle of

Corona brand beer sticking out of Allen's jacket pocket. The two

men identified themselves to the police; appellant stated that the

Mercedes belonged to his aunt and Samuels told the officers that

the Expedition was his brother's. Sergeant Colon informed the men

that because of the high gun activity in the area, they were going

to be pat frisked. After the frisk, Sergeant Colon removed the

bottle of Corona from appellant's right jacket pocket and a small

silver knife from his left pant pocket. Samuels, for his part,

admitted that there were several bags of marijuana in his pocket

and gave them to Sergeant Colon, along with a knife he removed from

his back pocket. According to the police report, when Colon then

asked Samuels about the contents of the Ford, Samuels became

nervous. Sergeant Colon opened the driver's side door of the

Expedition and found a firearm - a loaded Ruger 9mm handgun - on

the floor. Both Samuels and Allen were then placed under arrest;

Samuels for unlawful possession of a handgun and marijuana, and

appellant for drinking in public (which is an arrestable offense

under City of Boston Ordinance 16-5.1).

At that point, other law enforcement officers began to

arrive to provide assistance, including Officer James Coyne.

According to Officer Coyne's affidavit, Sergeant Colon advised him

-4-
that they had already found a gun in the Expedition, and "handed

[appellant] off" to Coyne. In his affidavit, Officer Coyne

explained that at this point he assumed, based on his training and

experience, that Sergeant Colon wanted to separate the two suspects

while he continued to investigate the gun. Officer Coyne did not

realize that appellant had already been placed under arrest but had

not been given his Miranda warnings.

Officer Coyne walked appellant over to his police cruiser

and pat-frisked him again, finding a single Mercedes Benz key

(which Allen said belonged to his aunt) and some cash in his front

pockets, both of which he returned to Allen. After placing Allen

in the rear of the cruiser, Officer Coyne asked him whether there

was anything illegal in the Mercedes, stating that if there were,

Allen's aunt would be charged with it. Appellant replied "whatever

you find, charge me with it." According to his affidavit, Officer

Coyne then asked appellant for the key to the Mercedes, but

appellant denied having it. Officer Coyne instructed appellant to

get out of the cruiser. He then discovered that the key was no

longer in the pocket where he had found it just moments before.

After unsuccessfully searching the rear compartment of the cruiser

and the area outside the vehicle for the key, Officer Coyne told

Allen that, if need be, he would break the window to get into the

Mercedes. Appellant sat down on the sidewalk and retrieved the key

from his sock.

-5-
 Once Allen was returned to the rear of the cruiser,

Officer Coyne walked up to the Mercedes. In his affidavit, Officer

Coyne averred that, once he had reached the Mercedes, he began to

look inside, shining his flashlight to illuminate the vehicle's

interior. Officer Coyne explained that he began his inspection by

looking through the rear window and then proceeded to the windows

on the driver's side as he walked around the side of the car along

the curb. According to his sworn testimony, when Officer Coyne

reached the corner of the front windshield, he leaned over the

fender and the hood of the vehicle, with both feet planted on the

ground, and shone his flashlight into the driver's side area. He

specifically denied having to walk or sit on the hood to look

inside of the car, although he admitted that he may have made some

incidental contact with the fender and the windshield as he moved

around the vehicle.

As we discuss further infra, in the memorandum of law

accompanying his motion to suppress, Allen presented a different

account of this incident. Allen claimed that, "according to the

reports provided in discovery, Officer Coyne then began to attempt

to examine the interior of the locked Mercedes. Unable to see

anything incriminating in the interior . . ., he positioned himself

on top of the hood of the Mercedes, and shined his flashlight into

the vehicle's interior." The memorandum contained no record

citations for this version of events, and Allen's affidavit did not

-6-
mention Officer Coyne's physical location when he saw the weapon.

Officer Coyne's affidavit recounted how, once he shone

his flashlight into the vehicle from the vantage point he had

described (i.e., leaning over the fender and the hood), he was able

to see the top of a chrome-colored gun. He immediately notified

Sergeant Colon, who walked over to the vehicle, took the key from

Coyne, and opened up the driver's side door to confirm that the

object was indeed a gun. Officer Coyne approached appellant and

demanded his license to carry a firearm, which appellant stated he

did not have. According to the officer's affidavit, Coyne then

removed Allen from the cruiser, placed him in handcuffs, informed

him of his Miranda rights, and took him to the police station for

booking.

Officer Coyne's affidavit further states that, after they

arrived at the station, and appellant had been informed of his

Miranda rights for a second time, appellant stated that the

"peashooter" was his and that the police "should just slap me off

the head with the gun and send me home." Appellant also said that

there were "no bullets in the tube but in the clip" and that the

gun had a serial number. According to Officer Coyne, this

conversation lasted no more than 5-10 minutes. However, in the

affidavit Allen submitted in support of his motion to suppress,

Allen presented an alternative version of events. He stated

generally that he had been "questioned under duress and coercion,"

-7-
and claimed that the statements he had allegedly made "were the

result of questioning after being placed under arrest but prior to

being informed of my Miranda rights."

After Allen and Samuels had been arrested, Lieutenant

Cruz, who remained at the scene, decided to impound the cars and

conduct an inventory search of the vehicles.

C. The Motion to Suppress

In the memorandum of law supporting his motion to

suppress, Allen argued (1) that Officer Coyne's search of his

person and seizure of the key violated the Fourth Amendment; (2)

that the search of the Mercedes was illegal and was not justified

by any exception to the warrant requirement; and (3) that his

questioning by Officer Coyne, both before and after he was given

the Miranda warnings, violated his Fifth Amendment rights. He also

requested an evidentiary hearing.

In support of his motion, appellant attached an unsigned

affidavit which stated, in its entirety, as follows:

1. My name is Darrell Allen.

2. I am the defendant in the above
captioned matter.

3. On the morning of May 28, 2005, I was
with Balgene Samuels on Maywood Street
in Roxbury.

4. Three police officers arrived and
searched me.

5. Items were taken from me, I was
handcuffed and placed under arrest for

-8-
 drinking in public, and placed in a
police car.

6. A Mercedes nearby was opened with a key
alleged to have been taken from me and
searched.

7. I was never seen in the Mercedes and I
did not consent or grant permission to
the search of the Mercedes.

8. It is alleged that I made certain
statements, which if made, were the
result of questioning after being
placed under arrest but prior to being
informed of my Miranda rights.

9. I made no knowing, intelligent, or
voluntary waiver of my rights.

10. I was questioned under duress and
coercion.

The government filed its opposition on November 21, 2006.

It was not until December 12, 2006, nearly three weeks after the

government had filed its opposition, that Allen filed another

affidavit in support of his motion to suppress that was identical

in all respects to the first one, except that he had signed the

second one.

The government's opposition to the suppression motion was

supported by excerpts of grand jury testimony by Sergeant Colon in

Suffolk County Superior Court and the sworn affidavits of

Lieutenant Cruz and Officer Coyne, each of which had a number of

accompanying exhibits. These included the Boston Police Department

Motor Vehicle Inventory Search Policy and the Vehicle Inventory

reports on the two cars, a map generated by the Boston Regional

-9-
Intelligence Center regarding the incidence of larcenies of motor

vehicles in the neighborhood of the arrest, the Boston Police

Incident Report on the arrests, photographs of the vehicles at the

scene, and appellant's Boston Police Department Prisoner Booking

Form containing a signed acknowledgment that he had been informed

of his Miranda rights.

The government argued (1) that Officer Coyne's search of

the defendant and seizure of the key to the Mercedes was justified

as a search incident to a lawful arrest; (2) that the seizure of

the firearm was proper both because its discovery would have been

inevitable after the Mercedes had been (properly) impounded, towed,

and subject to an inventory search, and also because the weapon was

in plain view; and (3) that with the exception of one statement

that he had made to Officer Coyne before he was administered the

Miranda warnings, all of appellant's statements were voluntary and

therefore admissible. Finally, the government argued that Allen

had not met his burden to obtain an evidentiary hearing because he

had failed to adequately contest the government's claims. It

maintained that Allen's one-page affidavit was insufficient to

establish the existence of any disputed facts that would warrant an

evidentiary hearing, even though Allen had an opportunity to

generate those disputes. The government's version of the events

(as contained in Colon's grand jury testimony, the Boston Police

Department Incident report, and the Supplemental Report prepared by

-10-
Officer Coyne) had been disclosed to Allen at the outset of the

case.

The district court ruled for the government. In reaching

its conclusion, the district court considered as evidence "only the

statements made in the affidavits" submitted. On this basis, the

court found that an evidentiary hearing was not required because

Allen had "not made a threshold showing that material facts [were]

in dispute." The court then denied the motion to suppress the

firearm and ammunition on the ground that the items "inevitably

would have been discovered [in] an inventory search pursuant to the

impoundment of the Mercedes following the defendant's arrest."

Citing the affidavit of Luis Cruz and the Boston Police Department

Inventory Search Policy, both of which were attached to the

government's opposition, the court explained that the impoundment

of the Mercedes would have been proper in order to protect it from

vandalism or theft, given the "hour of the day and the undisputed

description of the area of defendant's arrest as one 'plagued by []

firearm-related violence' and one 'in which car theft and car

vandalism frequently occur.'" Additionally, the court held that

the seizure of the firearm was independently justified by the fact

that Officer Coyne had discovered it in plain view. Finally, the

court ruled that, with the exception of Allen's statement that

"[w]hatever you find, charge me with it," which the government

conceded was made prior to Officer Coyne's recitation of the

-11-
Miranda warnings, all of appellant's other statements were

voluntary and thus admissible.

D. The Motion for Reconsideration

Three weeks after the district court's ruling, Allen

filed a request for reconsideration, supplementing his original

motion with "additional information" which, he asserted, was "not

previously available at the time it was filed." Specifically,

appellant submitted the affidavit of Balgene Samuels, which

contained certain factual assertions regarding the neighborhood in

which the men had been arrested and the events of May 28, 2005. In

his motion for reconsideration, appellant claimed that Samuels's

testimony was not previously available because state charges

against Samuels, which had raised legitimate Fifth Amendment

concerns for him, had been pending until November 8, 2006, and

because Samuels had been unreachable until his phone service was

"reconnected" on February 13, 2007.

In his affidavit, Samuels stated, inter alia, that his

family had owned a home at 33 Maywood Street since 1951; that none

of the family's cars, which had always been parked lawfully on the

street nearby, had ever been broken into, stolen, or vandalized

while parked there; and that at no time had his family's home been

broken into or vandalized, nor had he heard of any similar

occurrences in the neighborhood. Samuels further asserted that

neither he nor Allen had a beer bottle in their possession on May

-12-
28, 2005, although Sergeant Colon did pick one up from the sidewalk

near where they were standing. He claimed that Sergeant Colon told

both men that they would not be arrested for the marijuana or the

drinking because the police were only "looking for guns." Samuels

also stated that Allen told him that before being taken from the

scene, he had observed a police officer climb onto the hood of the

Mercedes.

Appellant argued that the "newly available" Samuels

affidavit called into question a number of the government's factual

allegations, including its assertion, adopted by the court, that

the neighborhood where appellant was arrested was "plagued" by

firearm violence and that if left unattended, the Mercedes would

have been at risk of vandalism and theft. Allen noted that the

Samuels affidavit contradicted the government's claim that Allen

was drinking a beer or had a beer in his pocket when the police

approached. He emphasized that the new evidence presented serious

questions regarding the sequence of events leading up to the

seizure of the firearm, including Officer Coyne's location as he

looked into the Mercedes and noticed the weapon. Finally,

appellant pointed out that the government's own discovery materials

demonstrated that even at the time of his original motion, there

had been a genuine factual dispute in the record: ATF Agent Thomas

Crowley, in his grand jury testimony, had stated that Officer Coyne

-13-
had actually gotten onto the hood of the car in order to look into

the vehicle.1

In opposing the motion for reconsideration, the

government argued that Allen had failed to show that Samuels was

unavailable while the original motion was pending or that the

information in his affidavit was "newly discovered," particularly

given that Allen himself had been present at the underlying events

1
The grand jury minutes contained the following exchange:

Q: And he actually had to get up, he got up on
the hood with a flashlight and shined it in?

A: Yes.

Later, in response to a juror's question, the following
colloquy occurred:

A: He was on the driver's side kind of like
where the door and the windshield come
together looking down that way. I believe.

Q: Let me ask you, Special Agent Crowley, at
some point, and if you need to refer to the
Form 26 about this, did Mr. Coyne - - did
Officer Coyne actually sit up on the, on the
hood of the car and look in?

A: Yes.

Q: On the inside, so he could see inside the
passenger compartment?

A: Yes. He actually looked through the front
windshield, I'm sorry, not the side door.

Q: Okay.

A: From the windshield right in.

-14-
but had chosen not to include any substantive information in his

own affidavit.

In a careful written opinion that was significantly

longer than its original decision denying the motion to suppress,

the district court denied the motion for reconsideration. The

court noted that appellant had been put on notice as to the

government's version of the events in question as early as November

17, 2006, when the government filed its original opposition to the

motion to suppress.2 Nevertheless, in the affidavit Allen signed

and executed twenty-one days later, he chose not to address any of

the government's central factual assertions or to present any

additional evidence that would have controverted its story.

Specifically, appellant's affidavit disputed neither Officer

Coyne's assertion that he had discovered the firearm in plain view

in the Mercedes by simply peering into it from the sidewalk, nor

the government's claim that the Mercedes was subject to an

inventory search pursuant to a lawful impoundment by the

investigating officers.

Turning to the Samuels affidavit, the district court

observed that all of the proffered evidence regarding the Grove

Hill neighborhood of Roxbury had been available to appellant when

2
On the same day, the government filed a motion for leave to
file a memorandum in excess of twenty pages. After the district
court denied this motion on November 21, 2006, the government
immediately filed its amended opposition on the same day.

-15-
he filed his initial motion to suppress, or at least by the time he

filed his own sworn affidavit on December 12, 2006. Indeed, on the

critical issue of "whether the firearm . . . was discovered in

plain view without Coyne's having to climb onto the hood of the

Mercedes," the district court emphasized that the Samuels affidavit

did "nothing more than recite an out-of-court-statement made by the

defendant himself." The court found it curious that Allen did not

include this crucial fact in his own affidavit, and that he had

since failed to file a supplemental affidavit with this

information. Nor did the court credit appellant's assertion that

Samuels had been unavailable because of Fifth Amendment concerns,

noting that Samuels's state court proceedings had concluded with

his guilty plea on November 8, 2006, and he was therefore available

at the time that Allen had filed his sworn affidavit. Moreover,

the court discounted Allen's insistence that the fact that Samuels'

phone had only been reconnected on February 13, 2007, had prevented

Allen from reaching him; the court inferred that, since Samuels'

own affidavit stated that he had lived at his family's Maywood

Street residence since 2001, Allen would have known how to find

him.

Finally, the district court noted that, in his original

motion to suppress, appellant had not cited Special Agent Crowley's

grand jury testimony, and that the court was not required to

"rummage through [its] files looking for the evidence now

-16-
advanced."3 Finally, the court indicated that its decision on the

motion to suppress would not necessarily have been affected by the

Crowley testimony even if it had been aware of it, since Crowley

was not a percipient witness to the relevant events.

II.

A. The Motion to Suppress

"The test for granting an evidentiary hearing in a

criminal case [is] substantive: did the defendant make a sufficient

threshold showing that material facts were in doubt or dispute?"

United States v. Vilches-Navarrete, 523 F.3d 1, 15 (1st Cir. 2008)

(quotation marks and citation omitted) (concluding that district

court did not abuse its discretion by failing to hold evidentiary

hearing on a motion to suppress). "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." United

States v. Staula, 80 F.3d 596, 603 (1st Cir. 1996) (upholding

3
It is unclear whether the court did indeed have this
material "in its files" before it received appellant's motion for
reconsideration. Allen obtained the grand jury testimony as part
of the government's production of documents in the case, but did
not specifically identify that testimony as the source of his
unsupported claim that Officer Coyne climbed on top of the Mercedes
until he filed his Motion to Reconsider. At that point, he also
submitted the grand jury testimony to the court as an exhibit to
his motion.

-17-
district court's decision to forego evidentiary hearing on motion

to suppress).

To obtain an evidentiary hearing on a motion to suppress

physical evidence, a defendant must make a sufficient showing that

the seized evidence "was the product of a warrantless search that

does not fall within any exception to the warrant requirement. The

burden is on the defendant to allege facts, sufficiently definite,

specific, detailed, and nonconjectural, to enable the court to

conclude that a substantial claim is presented." United States v.

Calderon, 77 F.3d 6, 9 (1st Cir. 1996) (internal quotation marks

and citation omitted).

Appellant now argues that the district court committed

reversible error by making numerous factual determinations adverse

to appellant in spite of what he characterizes as a "contradictory"

record. Under these circumstances, he contends that the district

court abused its discretion by failing to conduct an evidentiary

hearing to allow him to present evidence, contest the government's

version of events, and subject its witnesses to cross-examination.

We disagree.

1. The Firearm and Ammunition

We focus on the plain view exception to the warrant

requirement, an alternative ground for the court's denial of the

motion to suppress. Under that exception, a warrantless seizure is

nevertheless lawful if "(1) the seizing police officer lawfully

-18-
reached the position from which he could see the item in plain

view; (2) the seizure satisfied the probable cause standard; and

(3) the seizing officer had a 'lawful right of access to the object

itself.'" United States v. Antrim, 389 F.3d 276, 283 (1st Cir.

2004). Thus, in order to demonstrate the existence of a

substantial constitutional claim, appellant was required to proffer

specific facts plausibly suggesting that the search of the Mercedes

did not satisfy at least one of the prongs of the plain view

exception. As the government points out, Allen does not challenge

the third prong (i.e., whether the officer had a lawful right of

access to the object itself).4 Accordingly, we inquire whether it

was an abuse of discretion for the district court to find that

appellant had failed to raise a genuine issue of material fact

regarding either whether Officer Coyne "lawfully reached the

position" from which he saw the gun in plain view or the existence

of probable cause.

As we have noted, in ruling on appellant's original

motion to suppress, the district court "considered as evidence only

the statements made in the affidavits submitted by the parties."

In the affidavit attached to his motion, Allen did not dispute the

Government's version of events related to the search of the

4
This element asks not whether the officer was lawfully in a
position to see the contraband (the first element of the plain view
analysis), but whether he could lawfully seize it without
committing a trespass. See United States v. Jones, 187 F.3d 210,
221 n.10 (1st Cir. 1999).

-19-
vehicle. The affidavit does not contradict the officer's direct

statement that he was able to see the gun in the driver's side door

of the Mercedes by simply leaning over the hood and shining his

flashlight into the window. See Staula, 80 F.3d at 604 (noting

that an evidentiary hearing was not required where appellant's

affidavit contained no facts that contradicted a police officer's

direct statements). Indeed, the affidavit's only references to the

search of the Mercedes are appellant's assertions that "[a]

Mercedes nearby was opened with a key alleged to have been taken

from me and searched" and "I was never seen with the Mercedes and

I did not consent or grant permission to the search of the

Mercedes." These vague statements, neither of which even mentions

the manner in which Officer Coyne searched the vehicle, were

insufficient to call into question the government's account.

That is also true of the unsupported factual assertions

in appellant's memorandum of law that Officer Coyne "positioned

himself on top of the hood of the Mercedes," and that he "climbed

onto the hood of the Mercedes," from which point he made his

observations about the vehicle's content. Appellant's memorandum

did not contain any record citations that would have confirmed

these allegations, and it was not an abuse of discretion for the

district court to consider only the verified evidence before it.

In Calderon, we similarly found no reason to disturb the district

court's denial of an evidentiary hearing on a motion to suppress

-20-
where the defendant "vaguely claim[ed]" that a consent to search

was "coerced or was otherwise ineffective," but "offer[ed] no

affidavit or statement . . . to that effect, describe[d] no

circumstances supporting his assertion, and ma[de] no offer of

proof relative to any other facts that might support his

assertion." 77 F.3d at 9.

It is true that, before describing Officer Coyne's

actions while he was ostensibly positioned on the hood of the

Mercedes, the memorandum stated that "[o]utside the view of the

defendant, according to the reports provided in discovery, Officer

Coyne then began to attempt to examine the interior of the locked

Mercedes" (emphasis added). This vague allusion to "reports

provided in discovery," is insufficient to generate a material

factual dispute about whether Officer Coyne "lawfully reached the

position from which he could see the item in plain view," Antrim,

389 F.3d at 283. Appellant did not attach the relevant Grand Jury

testimony to his motion. Nor did he describe its contents in his

affidavit, or even specifically identify it as the source of the

allegations in his motion to suppress. Because appellant failed to

substantiate the vague assertion that Coyne had climbed upon the

vehicle, he failed to raise a genuine disputed fact with respect to

this prong of the plain view analysis.

Nor did appellant's filings in the district court call

into question whether there was probable cause to seize the gun,

-21-
see Antrim, 389 F.3d at 283. In his affidavit, Officer Coyne

stated unequivocally that when he shined the flashlight into the

Mercedes, he observed the top of a chrome gun and immediately

informed the other officers of his discovery of a firearm.

Appellant's affidavit proffers no specific facts to contradict this

assertion. In the face of Officer Coyne's observation of specific

contraband, appellant does not raise a serious question regarding

probable cause, and the district court's refusal to hold an

evidentiary hearing was not an abuse of discretion.

2. The Statements

Appellant's affidavit contained three assertions

pertaining to his questioning by the Boston Police Department:

It is alleged that I made certain statements,
which if made, were the result of questioning
after being placed under arrest but prior to
being informed of my Miranda rights[;]
I made no knowing, intelligent, or
voluntary waiver of my rights [and;]
I was questioned under duress and
coercion.

Setting aside the one statement properly suppressed by the district

court, which the Government concedes appellant made before he

received the Miranda warnings, these conclusory assertions must be

evaluated in light of the government's response.

In his affidavit, Officer Coyne averred that after he had

discovered the handgun and confirmed that Allen did not have a

license to carry a firearm, he handcuffed Allen, read him his

Miranda rights, and took him to the police station for booking. At

-22-
the station, Officer Coyne administered the Miranda warnings a

second time, and had a conversation with appellant lasting

approximately five to ten minutes. According to his affidavit,

during this time, Officer Coyne acted professionally and never

yelled or threatened appellant. Furthermore, the record before the

district court included a booking form containing a Miranda warning

acknowledgment that had been signed by the defendant.

In the face of the Coyne affidavit and the signed Miranda

acknowledgment, and faced only with appellant's vague assertion

that "certain statements . . . if made, were the result of

questioning after being placed under the arrest but prior to being

informed of [his] Miranda rights," unsupported by any references to

specific statements he sought to suppress, it was not an abuse of

discretion for the district court to find, without an evidentiary

hearing, that the statements were voluntary.

B. The Motion for Reconsideration

We review the denial of a motion for reconsideration for

abuse of discretion.5 United States v. Fanfan, 558 F.3d 105, 106

5
The government argues that appellant has waived this issue
by failing in his brief to separately enumerate the denial of the
motion for reconsideration as one of the issues presented in this
appeal or to independently challenge this decision in the argument
section of his brief. See Fed. R. App. P. 28(a)(5), (a)(9); Ramos
v. Roche Prods., Inc., 936 F.2d 43, 51 (1st Cir. 1991). Instead,
appellant raises a general challenge to the district court's
failure to hold an evidentiary hearing in light of the evidence
before it - including the evidence he submitted in connection with
his motion for reconsideration. We do not address the government's
waiver argument because we conclude that the district court did not

-23-
(1st Cir. 2009). Motions for reconsideration are not to be used as

"a vehicle for a party to undo its own procedural failures [or]

allow a party to advance arguments that could and should have been

presented to the district court prior to judgment." Iverson v.

City of Boston, 452 F.3d 94, 104 (1st Cir. 2006) (internal

quotation marks and citation omitted). Instead, motions for

reconsideration are appropriate only in a limited number of

circumstances: if the moving party presents newly discovered

evidence, if there has been an intervening change in the law, or if

the movant can demonstrate that the original decision was based on

a manifest error of law or was clearly unjust. Marie v. Allied

Home Mortgage Corp., 402 F.3d 1, 7 n.2 (1st Cir. 2005). A court

will deny a motion for reconsideration based on the "new evidence"

exception if that evidence "in the exercise of due diligence[]

could have been presented earlier." Emmanuel v. Int'l Bhd. of

Teamsters, Local Union No. 25, 426 F.3d 416, 422 (1st Cir. 2005)

(internal quotation marks and citation omitted). Although we

review for abuse of discretion the district court's determination

that Allen had not made this required showing, we would find no

error in the district court's decision even if our review were de

novo.

Appellant's motion for reconsideration was based on two

propositions: first, that the "new evidence" he proffered - the

abuse its discretion in denying the motion.

-24-
Samuels affidavit - required the court to hold an evidentiary

hearing on the merits of appellant's motion to suppress, and

second, that the court had erred by overlooking evidence in its own

records and ruling on the original motion without an evidentiary

hearing. The district court was correct to reject both these

claims.

Allen had filed his original motion to suppress, along

with the unsigned affidavit, on November 3, 2006. The government

filed its original opposition on November 16, and an amended

opposition on November 21. At least by this date, then, Allen was

on notice about the government's version of events. Nevertheless,

on December 16, the defendant filed a signed affidavit which,

despite his access to the government's opposition papers, was

identical to the original ten-paragraph affidavit, and none of

which directly responded to the government's plain view assertions

or specified the alleged Miranda violations. The court ruled on

the motion on February 8, 2007.

All of the evidence in the Samuels affidavit was

available to appellant at the time the original motion was filed,

and Allen himself could have provided that information in his

original affidavit; indeed, on the key plain view inquiry, the

Samuels affidavit says only that it was Allen who told him that he

had seen Officer Coyne climb onto the car. Appellant provided no

explanation for why this information was missing from his own

-25-
affidavit, and no satisfactory justification for the submission of

the Samuels affidavit in late February. Samuels's state court

proceedings were resolved by November 8, 2006, and the district

court was not obligated to accept Allen's argument that Samuels was

"unavailable" due to a lack of phone service. Indeed, the district

court reasonably inferred that Allen knew where Samuels lived and

could get in touch with him if he had wanted to.

Nor did the court abuse its discretion in concluding that

the mere reference in appellant's memorandum in support of his

motion to suppress to Officer Coyne having climbed on the hood of

the Mercedes was insufficient cause for an evidentiary hearing. As

we have discussed, the reference was unsupported by any source.

Although appellant cited to ATF Agent Crowley's grand jury

testimony in his motion for reconsideration to argue that record

evidence supported his version of events, this proffer was too

little, too late. Indeed, as the court noted, Agent Crowley was

not even "a percipient witness to the events in question,"6 and

therefore the court explicitly disclaimed the notion that its

decision to deny the suppression motion without a hearing would

have been different if it had known about the Crowley testimony.

Affirmed.

6
Asked to describe his involvement in the case before the
Grand Jury, Agent Crowley stated that he had "reviewed all the
reports relative to that arrest," "spoken to the arresting
officers," and done a background check on the firearm in question,
but that he "was not present that night."

-26-