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At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of January, two thousand fourteen.
Appeal from a judgment of the United States District Court for the Western District of New York (William M. Skretny, District Judge).
FOR APPELLANT: Nicholas J. Pinto, New York, New York.
FOR APPELLEE: Stephan J. Baczynski, Assistant United States Attorney, for William J. Hochul, United States Attorney for the Western District of New York, Buffalo, New York.
PRESENT: Jon O. Newman, Ralph K. Winter, Christopher F. Droney,
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and REVERSED in part.
Defendant-appellant Jeremiah K. Clark ("Clark") was convicted following a jury trial of being a felon in possession of ammunition and a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (Count I), and one count of possession of a controlled substance, in violation of 21 U.S.C. § 844(a) and 851 (Count II). On this appeal, Clark contends that the District Court erred in refusing to suppress evidence, and that the evidence adduced at trial was not sufficient to support his conviction on Count II. In this Order, we reject the first claim, and, in an opinion filed today, we uphold the second claim.
Following an evidentiary hearing, United States Magistrate Judge H. Kenneth Schroeder, Jr. issued a report and recommendation to deny Clark's motion to suppress evidence, and in an order dated August 6, 2004, the district court accepted the report and recommendation, and entered an order denying the motion. We have reviewed the district court's factual findings on the motion to suppress "for clear error, viewing the evidence in the light most favorable to the government, " United States v. Lee, 723 F.3d 134, 139 (2d Cir. 2013), and found no clear error in the district court's findings. We summarize those findings as follows.
In the early morning of November 16, 2002, a 911 operator in the Niagara County Sheriff's Department informed police officers that she had received a call from a woman in a local bar named Gonzo's, and "That a, [the caller] said that Chris and Jason . . . Richardson . . . Are out front in an older white Jeep Cherokee with guns. And they might not be there now but they have been circling the block because they are apparently going to attack somebody when they come out." The operator also explained that the caller had only given her first name and did not want any responding officers to interview her. Officer Scott Snaith of the City of Lockport Police Department took the call from the 911 operator, and recognized the Richardsons as having been involved in previous violent crimes. Officer Snaith relayed the information to fellow officers Steven Abbott and Todd Chenez, who then responded to the call.
After conferring briefly, the Officers Abbott and Chenez blocked in the Jeep Cherokee with their two patrol cars and exited their vehicles. With guns drawn but "at their sides, " each officer walked along a side of the Jeep. Officer Abbott saw Raymond Flores and Jason Richardson in the back seat of the car, and Christopher Richardson in the front passenger seat. The defendant Clark was in the operator's seat. Officer Abbott knew Flores and the Richardsons from previous incidents; upon recognizing the Richardsons and Flores, and seeing some "nervous" movement from Clark, Abbott ordered the occupants of the car to "place their hands forward." Officer Abbott then began to question Clark. Officer Abbott told Clark that the officers were responding to a report of possible firearms, and asked whether there were any handguns in the car. Clark denied that there were weapons in the car. Officer Abbott then asked Clark to consent to a search, which Clark declined. Other officers began to arrive, and Officer Abbott asked Clark to step out of the car. Officer Abbott saw the butt of a handgun underneath the driver's seat as Clark was getting out of the car.
Deputy Sheriff Gary May of the Niagara County Sherriff's Department was one of the officers to arrive after Officers Abbott and Chenez made their initial approach. Upon his arrival, he parked in front of the Jeep. He noted that an individual had been removed from the car and was being questioned by Officer Abbott. Deputy May then went to the driver's side of the vehicle and scanned its occupants. He then observed "what [he] thought was a butt of a gun underneath the driver's seat ...