USCA1 Opinion

UNITED STATES COURT OF APPEALS

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

_________________________

No.

95-1882

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN J. STAULA,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

___________________

_________________________

Before

Selya, Stahl and Lynch, Circuit Judges.

______________

_________________________

Martin K. Leppo for appellant.

_______________
Todd E. Newhouse, Assistant
__________________
whom Donald K. Stern,
_______________
appellee.

United States

Attorney, with

United States Attorney, was on

brief, for

_________________________

March 29, 1996

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

federal grand

jury charged

defendant-appellant

Stephen J.

Staula, in

relevant part,

with

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

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

U.S.C.

922(g)(1), (j).

jury convicted the

Following a five-day trial,

appellant on

See 18
___

the petit

all three counts.1

The

court

imposed an incarcerative sentence.

In this appeal,

Staula labors to convince us

that the

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

the

indictment

for

evidence, and (iii)

want

of

speedy

direct judgment

persuaded that any error occurred.

I
I
_

Background
Background

trial,

of acquittal.

(ii)

suppress

We are

not

__________

We sketch the facts in the light most hospitable to the

jury's verdict.

See United States

___ _____________

v. Ortiz, 966 F.2d

_____

707, 711

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

_____ ______

During the early evening of September 13, 1993, officer

David

Tyrie of

the Hanover police

department stopped

a pickup

truck for patent violations of the state motor vehicle code.

Mass. Gen. L. ch. 90,

plate on

driver

6 (requiring, inter alia, a front license

_____ ____

every commercial

alia, operable brake

____

and registered

See
___

vehicle); id.
___

lights).

owner

7 (requiring,

The appellant proved

of the

ill-equipped

inter
_____

to be

vehicle.

the

____________________

1The indictment

also charged

the appellant with

two drug-

related

offenses.

The jury acquitted him on these counts and we

eschew any further reference to them.

female

companion named

Myriah Morse,

later to

become Staula's

wife, occupied the passenger's seat.

Tyrie testified that he smelled burnt marijuana when he

first

approached

registration

the

certificate

driver's

and

side

operator's

window

to

license.

demand

He

then

retreated

to

his

backup.

After

vehicle

and

marijuana.

truck.

cruiser with

the

two other officers

inquired whether

documents

Staula and

the

Morse

called for

arrived, Tyrie revisited

occupants

He also asked whether they

Both

and

had been

the

smoking

had any marijuana in the

answered

the

queries in

the

negative.

Apparently

Morse's

unconvinced

volunteered

statement

incense in the vehicle, Tyrie

search the truck.

appellant

to

After

alight,

by

that

these disclaimers

she

recently

searched the

driver's

he ordered

side

of the

directed Morse to alight,

by

burned

sought the appellant's consent

having been rebuffed,

(discovering no contraband),

had

and

to

the

cab

searched

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

the passenger's seat.

Arrests followed all around.

Prior

to

standard inventory

impounding the

vehicle,

search and discovered a

Tyrie conducted

fully loaded handgun

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

of

ammunition

ammunition

were

behind

the

passenger's

located within

inches

within easy reach of the driver.

At trial,

seat.

of

The

gun

and

the marijuana,

and

The weapon's hammer was cocked.

the appellant

built his defense

around the

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

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

who

claimed that he purchased

transaction,

accepted

the

the marijuana and,

gun

acquaintance; borrowed the pickup

September 11; placed the

then drove to

ammunition

from

New Hampshire.

and the

claims

returned the

an

truck from Staula on Saturday,

described articles in the vehicle;

(with the truck

to have

and

in a separate

Nason

supposedly remained

contraband) until Sunday

truck to

the appellant

(only minutes before Tyrie made the traffic stop).

II
II
__

Analysis

evening.

and

there

He

on Monday

Analysis
________

A.
A.
__

The Speedy Trial Act

The Speedy Trial Act
____________________

The appellant's principal claim is that the prosecution

did not

the

bring him to trial

Speedy

Trial Act,

concomitantly, that

the

18 U.S.C.

See
___

Gallo,
_____

20 F.3d

question of law engendering

63 F.3d 1159,

S. Ct. 681 (1995);

7,

therefore

In this case, the speedy

United States v. Rodriguez,

_____________
_________

cert. denied, 116

_____ ______

11 (1st

prescribed by

3161-3174 (the

district court

dismissed the indictment.

involves a straight

within the time frame

Cir.

Act), and

should

have

trial claim

de novo review.

1162 (1st Cir.),

see also United States

___ ____ _____________

1994) (explaining

that

v.

pure

questions of law demand plenary appellate review).

The

embodied

baseline premise

in 18 U.S.C.

of the

Act is

its requirement,

3161(c)(1), that a defendant is entitled

to

be tried

within seventy

appearance before

See
___

United States
_____________

a judicial

days of

his indictment

officer (whichever

v. Hastings,
________

847 F.2d

or initial

first occurs).

920, 924

(1st Cir.),

cert. denied, 488 U.S.

_____ ______

925 (1988).

The premise

cannot be taken

literally, however, for the Act contemplates that certain periods

of time will

be excluded from the computation.

3161(h).

inquiring court

An

process.

First,

the court

therefore must

must do

determine the aggregate time elapsed

must

determine

ultimate sum.

how

many

days

See 18 U.S.C.
___

follow a

the basic

mathematics and

awaiting trial.

should

be

two-step

Second, it

excluded

from that

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

___ _____________
_________

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

_____ ______

Here,

undisputed.

1994

the

salient dates

and

events are

The speedy trial clock began to

(the date

of arraignment).

See
___

essentially

tick on October 26,

id. (describing
___

date of

inception

of speedy trial period).

The clock stopped ticking on

March 16, 1995 (the date on which the appellant

to dismiss under the Act).

81,

84 (1st

[under

the

Cir. 1991)

Act] is

antedate the filing

filed his motion

See United States v. Connor, 926 F.2d

___ _____________
______

(holding that

effective only

of the

motion").

"a motion

for

for dismissal

periods of

Excluding

time which

March 16,

see
___

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

_________

a motion is filed

is not counted), the aggregate

period amounts

to 140 days.

We now take the second

begins and ends

with the

step in the pavane.

appellant's motion to

This

step

suppress.

The

appellant

served

this

motion

on

November

17,

simultaneously requested an evidentiary

hearing.

filed

judge

an opposition.

The magistrate

pending motions reserved the

judge.

On March 22, 1995,

counsel but

made no ruling.

1995),

judge

the

denied

1994,

and

The government

assigned to

hear

suppression motion for the district

Judge Tauro discussed the motion with

On the day trial

the

convening an evidentiary hearing.

motion from

the

began (April 18,

bench

He also denied the

without

motion to

dismiss primarily on the basis that the period between the filing

of

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

the

"preliminary hearing" thereon

(March 22,

1995) constituted

excludable time under the Act.

The appellant challenges this ruling.

the brief exchange on March

purposes

of the Act.

provides

that delay

"from

hearing

the filing

on, or

excludable.

22 did not comprise a "hearing"

The point is

connected with

of the

of the motion

a pending

3161(h)(1)(F).

pretrial motion,

the conclusion

disposition of,

a hearing,2 this subsection excludes

for

significant because the Act

motion through

other prompt

18 U.S.C.

He contends that

of the

such motion,"

is

For motions that require

the time between the filing

and the hearing on that motion,

even if the delay

is

overlong, inexplicable,

or unreasonable.

See
___

Henderson v.
_________

____________________

2It is often arguable whether a particular motion requires a

hearing.

See generally United States v. Tannehill, 49 F.3d 1049,

___ _________ _____________
_________

1052 n.4

(5th Cir.), cert. denied, 116 S. C.t 167 (1995).

_____ ______

the

appellant

requested

acknowledging that
not discuss

one was

the factors

hearing

appropriate.

on

his

"requires" a hearing.

motion,

Consequently,

that determine whether

Here,

a given

thus

we need

motion

United States,
_____________

Johnson,
_______

476 U.S.

329-30 (1986);

29 F.3d 940, 942-43

Clymer, 25 F.3d
______

Noone,
_____

321,

824, 830-31

913 F.2d 20, 27

U.S. 906

(1991).

hearing

within the

Thus,

appropriately excluded

(5th Cir. 1994);

if the

of

all the

United States
_____________

v.

1990), cert. denied, 500

_____ ______

March 22 encounter

the

v.

United States v.
_____________

(9th Cir. 1994);

n.10 (1st Cir.

purview

United States
_____________

Act,

the

comprises a

district

time accrued after

court

November 17,

1994.

The Act itself does not

the case

law on this point

however,

that

due

hearings, see Doyle

___ _____

process

define the term "hearing," and

is relatively sparse.

rarely

demands

v. Secretary of HHS, 848

________________

full

It is clear,

evidentiary

F.2d 296, 302 (1st

Cir.

1988)

something

engage

cases

1049

(collecting

less than a

the gears of

are instructive.

cases),

and

are

confident

full evidentiary hearing

3161(h)(1)(F).

In

that, at a minimum,

Two

will suffice to

Tannehill, 49 F.3d
_________

S. Ct. 167 (1995), the court

"the term includes

a situation in

which the district court hears argument of counsel and

[those

arguments] prior

Utilizing

merits

of

to making

that

recent Fifth Circuit

United States v.
_____________

(5th Cir.), cert. denied, 116

_____ ______

declared

we

its ruling."

Id.
___

considers

at 1053.

this standard, the court held that a discussion of the

the

defendant's

motion

at

the

constituted a hearing for purposes of the Act.

outset

of

trial

See id.
___ ___

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

_____________
_____

[No.

94-10922,

1996 WL

75726], a

brief exchange

concerning a

pending motion

occurred between

the district court

and counsel

for the

government (in which defense

did not

play a part).

See
___

counsel, although present,

id. at ___
___

[1996 WL 75726

at *2].

Applying the Tannehill standard, the panel found this abbreviated

_________

colloquy to be a hearing within the purview

of the Act.

See id.
___ ___

at ___

[1996 WL 75726

occurs whenever

motion with

at *4].

the district

The court

judge discusses

the

hearing

merits of

counsel for the party against whom the ruling on the

motion is ultimately rendered.

In the

put

said that a

See id.
___ ___

case at hand,

forward by

the trial court

the appellant's

counsel in

heard arguments

open court,

on the

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

salient

facts.

opportunity.

the court,

of

The court

In our view,

then gave

the prosecutor

this give-and-take among counsel and

notwithstanding its relative brevity,

what a hearing entails.

for the exchange:

take evidence,

the

is the essence

And, moreover, there was good reason

appellant had requested

and the court

a similar

was not in an

that the

court

optimal position to

rule upon the appellant's

counsel and

suppression motion until it questioned

determined the need for, and

the potential efficacy

of, an evidentiary hearing.

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

that

hearing is

any

on-the-record

colloquy

in

We hold

which

the

district court hears the arguments of counsel and considers those

arguments prior to deciding

yardstick, the proceedings on

purposes of

18 U.S.C.

a pending motion.

Measured

March 22 constitute a

3161(h)(1)(F).

It follows

by this

hearing for

inexorably

that the district court properly excluded the entire period

November 17, 1994 through

on

which the

appellant

from

March 22, 1995 (a date beyond the date

filed his

motion

to dismiss).3

See
___

Henderson, 476 U.S. at 330.

_________

This

ruling

the

total

Computing

defenestrates

time

elapsed

appellant's first appearance and

motion to

subtracting

dismiss for

the

want of

portion of

pendency of the motion

the

speedy

between

the

trial

date

the date on which he

a speedy

that

time

trial (140

of

the

filed his

days), and

excludable due

to suppress (118 days), it

claim.

to

the

is abundantly

clear

that trial commenced within the time frame mandated by the

Act.

B.
B.
__

The Motion to Suppress

The Motion to Suppress
______________________

The objection

the

motion

aspects.

to

suppress

to the

district court's

has both

substantive

disposition of

and

procedural

We discuss them seriatim.

1.
1.

Probable Cause.
Probable Cause.
_______________

A police

officer may

effect a

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

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

vehicle

activity.

contains

contraband

or

other

evidence

of

criminal

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

___ ____ ______________
_______________

____________________

3We join the Fifth Circuit,

see Grosz, ___ F.3d at

___ _____

___ n.7

[1996 WL 75726 at *9], in

warning that we will not permit either

the district court or the

prosecution to jerry-build a "hearing"

in order to thwart
Act.

Here,

contrivance,

the concinnous operation of the

however,

the

record

contains

no

Speedy Trial
hint

of

such

and, for that matter, the appellant has levelled no

such charge.

719, 726 n.5

(1st Cir. 1995); United States

_____________

v. Panitz, 907 F.2d

______

1267,

1271 (1st Cir. 1990).

In this

instance, the appellant's

asseveration that the police lacked probable cause for the search

elevates hope over reason.

In

sufficient

assessing

showing of

"whether

probable

examine the `totality of

Nocella, 849 F.2d

_______

Gates, 462 U.S.

_____

those

government

cause, a

(1st Cir. 1988)

213, 230

(1983)).

On

of the lower court's

findings are clearly

F.3d 971,

must

United States v.
______________

appeal, this

v.

assessment

factual findings unless

erroneous, but

975 (1st Cir.

made

(quoting Illinois
________

necessitates plenary

review of the lower court's legal conclusions.

v. Zapata, 18
______

has

reviewing court

the circumstances.'"

33, 39

entails acceptance

the

See United States

___ _____________

1994); United States

_____________

v.

Rodriguez-Morales,
_________________

denied,
______

929

F.2d 780,

502 U.S. 1030 (1992).

783

(1st

Cir. 1991),

cert.
_____

Moreover, the law recognizes that

vehicle search under this exception may encompass all areas of

the vehicle in

which the

suspected contraband is

likely to

be

found.

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

1990),

cert.
_____

denied,
______

499

principles, it is readily

U.S.

950

(1991).

Applying these

apparent that the court below

did not

err in finding probable cause and ratifying the search.

Tyrie's

affidavit

asserts

unambiguously

that

he

detected an aroma of burnt marijuana when he first approached the

pickup

truck.

The

case law

enforcement officer detects the

a confined area,

such as

is

consentient that

when

a law

odor of marijuana emanating from

the passenger compartment

of a

motor

10

vehicle,

that

olfactory

probable cause to

conduct a

United States v. Johns,

_____________
_____

v.

evidence furnishes

search of the

the

officer

with

confined area.

See
___

469 U.S. 478, 482 (1985);

United States
_____________

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

______
_____________

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

1066 &

507 U.S. 978 (1993).

Thus, Tyrie had a

right to search

the entire passenger compartment of the pickup truck.

See United
___ ______

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

______
_______

The

appellant also

assails

the second

phase of

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

search was lawful

for three

reasons.

First, the

the

That

extent of

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

___ ____ _____________

v. Giannetta,
_________

Tyrie's

continue

571, 574,

discovery of the

to

contraband.

appellant

909 F.2d

hunt

within

577 (1st

marijuana gave

him probable

the passenger

compartment

See, e.g., Maguire, 918

___ ____ _______

cannot seriously

Cir. 1990).

dispute

F.2d at 260.

that when

Here,

cause to

for

more

Second, the

Tyrie spied

the

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

See, e.g.,
___ ____

United States
_____________

v. Uricoechea-Casallas, 946
___________________

F.2d 162,

____________________

4The appellant's attempt to dilute the

is disingenuous.

He cites

other decisions suggesting

existence of

probable cause to search

of a vehicle

does not necessarily confer

trunk.
theme,

See, e.g., Nielsen, 9

___ ____ _______
he then

posits that

seats in the pickup truck.

space

that the

the passenger compartment

a right to search

F.3d at 1491.
Tyrie could

The fly

behind the seats, in

force of these cases

the

Expanding on this

not search

behind the

in this ointment is that the

which Tyrie found

the marijuana, is

part of the truck's passenger area, and no amount of wordplay can

change that fact.
passenger

Since

the aroma of marijuana wafted from

area, that region became

under the automobile

fair game for

a drug search

exception to the warrant requirement.

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

_____________
____

11

the

See
___

166 (1st Cir. 1991).

Having lawfully arrested the driver in

the

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

vehicle

460-61

n.4

for contraband.

(1981); United States v.

_____________

(1st Cir.

1994).

Tyrie's search can be

Third,

See New York v.

___ ________

Under

Belton, 453 U.S. 454,

______

Reyes-Mercado, 22 F.3d 363, 366

_____________

this rule,

the

justified as incident to a

second phase

of

lawful arrest.

when a driver is lawfully arrested and thus disabled from

continuing his

journey, the

carry out a routine

Constitution permits the

police to

inventory examination incident to impounding

the vehicle.

See Zapata, 18 F.3d at 978; United States v. Ramos___ ______

_____________
______

Morales, 981 F.2d 625, 627 (1st Cir.

_______

Ct. 2384

(1993).

In this

1991), cert. denied, 113 S.

_____ ______

case, the second phase

of the search

fit comfortably within this integument.

On any

of

these bases,

themselves the fruits of

at trial.

the gun

and ammunition

a lawful search and, hence,

were

admissible

Accordingly, the district court did not err in denying

the motion to suppress.

2.
2.

berates the

denying

shunning

Lack of an Evidentiary Hearing.

Lack of an Evidentiary Hearing.
______________________________

trial court for two

The appellant next

ostensible procedural blunders:

him an evidentiary hearing on his motion to suppress and

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

The

criticism is unwarranted.

It

entitled,

is

as a

apodictic

matter of

that

a criminal

right, to

every motion that he deigns to file.

at 1273; United States v.

______________

defendant

an evidentiary

is

not

hearing on

See, e.g., Panitz, 907 F.2d

___ ____ ______

Pellerito, 878 F.2d

_________

1535, 1545

(1st

12

Cir. 1989).

A hearing is

required only if

the movant makes

sufficient threshold showing that material

dispute, and that

paper record.

such facts

See
___

cannot reliably be

United States v. Lilly, 983

_____________
_____

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

______

defendant

must show

facts are in doubt or

that there

resolved on

F.2d 300, 310-11

Most importantly, the

are factual disputes

which, if

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

See, e.g.,
___ ____

Lilly, 983 F.2d

_____

considerable

discretion in

at 310-11.

The district

determining

the need

court has

for, and

the

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

denial of an

criminal

evidentiary hearing

case only for manifest

id. at 311.
___

in respect

abuse of that

to a

motion in

discretion.

See
___

In this instance the district court correctly concluded

that

it would

be pointless

to convene an

evidentiary hearing.

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

smelled

burnt marijuana when

he first ventured

near the pickup

truck.

The appellant filed an affidavit in which he stated that

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

the vehicle a second time.

On this basis, the appellant surmises

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

Tyrie did not

actually detect the

fragrance of marijuana,

but,

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

checked the appellant's

license and

registration, proceeded

concoct the story to justify his desire to search the

the appellant's

view, an

evidentiary hearing would

truck.

to

In

have smoked

13

out the truth.

The asseveration is profoundly

flawed.

Even accepting

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

contains no facts that

that

truck.

contradict the officer's direct statement

he smelled burnt marijuana

Whether

detected the

Tyrie

on his initial

mentioned the

odor is hardly the

point.

marijuana

It

approach to the

when he

first

is fully consistent

with

competent

reinforcements

police

when

work for

he discovers

lone

that

the

outset,

prudence.

does

Tyrie

would merely

not

create a

evidentiary

F.3d 1396,

factual

hearing.

See,
___

1412-13 (1st Cir.

more than

for

By not tipping his hand

be

Against this backdrop, the

to call

something

routine traffic stop may be in progress.

at

officer

exercising

reasonable

bare assertion of pretext

conflict sufficient

to

e.g., United States v.

____ ______________

justify an

LaBonte, 70
_______

1995) (explaining that

a district

court need not convene an evidentiary hearing when presented with

"no

more

than

conclusory

prognostications

and

perfervid

rhetoric").

The appellant's claim that the district court

Fed.

R. Crim. P.

12(g) is equally

jejune.

That

violated

rule does not

demand

that the trial court hold an evidentiary hearing on every

affected motion.

It

simply requires the court to ensure

verbatim

is

made

including

record

of

all

"such findings of fact

made orally."

Fed. R. Crim.

proceedings

and

and conclusions of

P. 12(g).

The

that a

hearings,

law as are

transcripts of the

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

14

to suppress fully satisfy the strictures of the rule.

C.
C.
__

Sufficiency of the Evidence

Sufficiency of the Evidence
___________________________

The

three

appellant's

sufficiency challenge

counts of conviction.

suggests

that there

was

In respect

count

3, he adds that

to counts 1

inadequate evidence

knowingly possessed either the gun or

implicates all

to

had travelled in

stolen.

We discern no merit in these contentions.

review the

judgment of acquittal de

interstate commerce after

trial court's

novo.

See
___

he

Regarding

no evidence that

the gun

We

show that

the ammunition.

the government produced

and 2, he

denial of

having been

a motion

United States v. Valle,

_____________
_____

for

72

F.3d 210, 217 (1st

challenges

"If the

agreeable

rational

to

the

government,

jury to find each

Id. at 216.
___

credibility

the

in the

is adequate

essential element of

to

is a

light

permit

the offense of

doubt, then the defendant's claim

In pursuing this inquiry,

inferences with the

we resolve all

v. Taylor,
______

54 F.3d 967,

jury's verdict.

974 (1st

token, we concern ourselves with the weight

of

criminal case

conflicts to the government's benefit, and harmonize

all reasonable

States
______

in a

which we size up

evidence presented, taken

conviction beyond a reasonable

fails."

The measure by

to evidentiary sufficiency

familiar one:

most

Cir. 1995).

evidence,

not

its

nature,

for

See United
___ ______

Cir. 1995).

By like

and persuasive power

either

circumstantial evidence, or any combination thereof,

direct

or

may suffice

to

defeat a motion for acquittal.

See United States v. Spinney,

___ _____________
_______

15

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

1.
1.

statute

Scienter.
Scienter.
________

Turning

of conviction, 18 U.S.C.

three elements:

(1) that

first to counts

1 and 2,

the

922(g)(1), requires proof of

the defendant had

a record of

prior

felonious

conduct,

ammunition),

commerce.

1995).

(3)

yet

in

(2)

knowingly

circumstances that

possessed

implicated

gun

(or

interstate

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

___ _____________
______

The

appellant

concedes that

the government

proffered

sufficient evidence to support findings beyond a reasonable doubt

anent

the first

sufficiency of

and third

the evidence regarding

possession of the firearm

down to a

of these

plea that the jury

ammunition in

before the arrest,

the second:

his knowing

was duty bound to

His

plaint boils

accept the only

Nason's averment that he placed

the truck, returned

and never

appellant's attention

disputes the

and the ammunition.

direct testimony on the subject

the gun and

elements but

called the added

and not to go beyond it.

it only

minutes

contents to

the

There

approach.

are

two

major

First, Nason's

problems

story,

even if

necessarily exonerate the appellant;

discovered the

the truck

obliged

contraband between

and Tyrie flagged it

to accept

with

this

believed,

suggested

does not

the latter might still have

the time when

down.

Nason's testimony

Nason returned

Second, the

in whole

jury was not

or in

part, but

could instead draw reasonable inferences from the totality of the

circumstances.

971

(1st

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

___ ____ _____________
______

Cir.), cert.
_____

denied, 116
______

16

S.

Ct. 622

(1995); United
______

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

______
_______

These problems are exacerbated by the other evidence in

the record.

very

The circumstantial

strong.

The appellant

proof of knowing

was both the

possession is

owner and operator of

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

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

the appellant exercised

dominion and

which

ammunition

the gun

and the

control over

the area

were discovered,

at liberty

to

find that

he

was in

knowing

in

see United
___ ______

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

______
_________

was

Since

the jury

constructive

possession of the weaponry.

See United States v. Wight, 968 F.2d

___ _____________
_____

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

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

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

see also United States

___ ____ _____________

1994)

(explaining

circumstances

v. Bergodere, 40 F.3d 512,

_________

that

attendant

knowledge

to

be

constructive

denied, 115
______

S. Ct. 1439 (1995).

concerning

the

appellant's

may

518 (1st Cir.

established

possession),

from

cert.
_____

In short, the jury's conclusion

knowing

possession

is

eminently

supportable on this record.

2.
2.

Interstate Commerce.
Interstate Commerce.
___________________

focused challenge to his

The

appellant raises a more

conviction on count 3.

Bolstered

by a

recent

719

Ninth Circuit case, United States v. Cruz,

______________
____

(9th

Cir.

1995), he

conviction, 18 U.S.C.

that

the

firearm

insists

922(j),

travel

that

under

50 F.3d 714,

the statute

it is an element of the

in interstate

commerce

of

offense

after
_____

being

17

stolen, and that

the government's evidence

here failed to

nail

down this element.

The

first

difficulty with this argument is

place, we reject the

notion that, to

firearm must reenter the stream of interstate

922(j), a

commerce after its

This

U.S.C.

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

_____________
_______

rationale in

aside a

trigger

In the

theft.

(1st Cir.),

court turned

twofold.

cert. denied, 488 U.S.

_____ ______

Gillies to
_______

the

commission of

857 (1988), and we

be persuasive.

that rationale we hold that, under

weapon floats in

similar challenge

922(j), it is

the stream of commerce

the

offense of

Thus,

under 18

find the

consistent with

enough if the

at some point prior

conviction.

Accord
______

to

United
______

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

114 S. Ct. 1226 (1994).

that the

Because the appellant does not

firearm travelled in interstate

dispute

commerce before coming

to rest in his pickup, he cannot prevail.

The finishing touch is that there was evidence at trial

that the firearm travelled

interstate as a stolen firearm.

___________________

appellant's own witness, Nason,

him

from Massachusetts to New

the police

found the weapon

several years after

even if post-theft

the gun

swore that he took the

The

gun with

Hampshire only a

few days before

in the appellant's

possession (and

had been reported

travel were

an element of

stolen).

the offense,

Thus,

the

verdict would not be undercut.5

____________________

5The fact that the evidence of interstate travel was adduced

in the defense case, rather than in the prosecution's case, is of

no consequence.

The

court of appeals may properly

consider all

18

III
III
___

Conclusion
Conclusion
__________

We need go no further.

Because the

government brought

the appellant to trial within the period prescribed by the Speedy

Trial Act, and

no other

error in the

proceedings appears,

the

judgment below must be

Affirmed.
Affirmed.
________

____________________

evidence presented when confronting a sufficiency challenge.

See
___

United States v. Arache, 946 F.2d 129, 138 (1st Cir. 1991), cert.
_____________
______
_____
denied, 502 U.S. 948 (1992).
______

19