United States Court of Appeals

For the First Circuit

No. 07-2796

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL VASQUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges.

Kevin J. Reddington for appellant.

Sara Miron Bloom, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief for

appellee.

October 8, 2008
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BOUDIN, Circuit Judge. Rafael Vasquez appeals from his

conviction for drug and gun offenses. Based on evidence at the

suppression hearing and trial, a brief sketch of the background

events is as follows.

On December 13, 2005, acting on a tip regarding a likely

drug delivery, police officers stopped a car near the parking lot

of a restaurant in Fall River, Massachusetts, and ordered the

occupants to exit. As Vasquez exited from the passenger side, he

told the officers that he had a gun, which they took from him. The

female driver, exiting from the other side, dropped a plastic bag

seemingly containing drugs; and Vasquez shouted that the crack

belonged to him and that the driver had nothing to do with it.

Vasquez was charged with possession of cocaine base with

intent to distribute, 21 U.S.C. § 841(a)(1) (2000), possession of

a firearm in relation to a crime of drug trafficking, 18 U.S.C. §

924(c)(1)(A) (2000), and being a felon in possession of a firearm

and ammunition, 18 U.S.C. § 922(g)(1) (2000). A jury convicted

Vasquez on all three counts, and he was sentenced to concurrent

five year terms for the first and third offenses, and a consecutive

five years for the second offense, as required by 18 U.S.C. §

924(c)(1)(A). This appeal followed.

Vasquez's principal argument on appeal is that the

district court should have suppressed his statements acknowledging

that the drugs were his, his admission that he possessed the gun
United States v. Jones, 523 F.3d 31, 36 (1st Cir. 2008) 1

("When considering challenges to a district court's denial of a

motion to suppress, we ordinarily review findings of fact for clear

error and conclusions of law de novo."); United States v.

Cunningham, 201 F.3d 20, 28 (1st Cir. 2000) ("[I]n absence of clear

error, credibility assessments 'are exclusively within the province

of the sentencing court.'") (quoting United States v. Olivier-Diaz,

13 F.3d 1, 4 (1st Cir. 1993))).

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and the gun itself. He says that no reasonable suspicion justified

a stop of the car, nor did probable cause exist to warrant what he

characterizes as a de facto arrest. Following a suppression

hearing prior to trial, the judge had refused to suppress the

evidence, finding that a reliable informant's tip and the officers’

observation of suspicious activity during surveillance provided

adequate justification for the officers’ actions.

The district judge credited the testimony of Detective

Jacob, who testified at the suppression hearing as to the origin of

the tip; that finding is reviewed only for clear error, and 1

Vasquez does not contest it. Jacob said that the tip was received

by an informant; that the informant had provided reliable

information to him personally as to drug deals in August, September

and October 2005; and in each instance a search warrant issued and

the suspects were convicted. 

The district court also ruled that although the informant

had himself been arraigned in early September 2005 for forgery and

writing false checks, he remained "clearly reliable" as an

informant, two of the three earlier tips having been furnished
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after the arraignment. A sufficiently specific tip from an

informant of proven reliability can establish probable cause for an

arrest, not merely a Terry stop. United States v. Link, 238 F.3d

106, 109-10 (1st Cir. 2001). Given his accurate tips, the

informant's own criminal background did not prevent the police from

reasonably relying upon his information. See United States v.

Brown, 500 F.3d 48, 54-56 (1st Cir. 2007). 

Further, the informant had said that a Hispanic man named

"Raffe"--about 30 years old with black hair--would be driven by a

female driver in a white Toyota Corolla to the parking lot in order

to deliver a package of crack cocaine. Just before the arrest, the

defendant had entered the parking lot in a white Toyota Corolla,

driven by a woman. This, of course, tended to "corroborate that

certain events had taken place exactly as the [confidential

informant] had predicted." Brown, 500 F.3d at 56.

Finally, the police testified that the car's driving

pattern was unusual: the car drove slowly around the parking lot as

Vasquez and the driver peered into the parked cars, the car exited

the lot without stopping, drove onto a highway, and then

immediately turned off it and returned to the street next to the

parking lot. It was at this point that the police, now having more

than ample probable cause, halted the car, ordered the passengers

out and secured the gun and drugs.
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Vasquez makes several other preserved arguments, but none

requires much comment. The district court refused to dismiss a

juror who said that he supported gun control laws but could be

impartial. Such rulings are reviewed for abuse of discretion, see

United States v. Martí-Lón, 524 F.3d 295, 300 (1st Cir. 2008), and

there is no indication of any such abuse in this instance.

Further, the juror turned out to be an alternate and was dismissed

before deliberations began.

Vasquez also says that the evidence was insufficient to

show that the gun he surrendered at his arrest was carried during

and in relation to a drug trafficking crime. Although the argument

was preserved by motion for acquittal, Vasquez clearly brought the

gun to the scene with the drugs, and the jury was entitled to

conclude that the gun had sufficient "potential of facilitating"

the drug trafficking offense for which Vasquez was convicted.

Smith v. United States, 508 U.S. 223, 238 (1993) (quoting United

States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)). No more is

required.

The remaining claims of error--for example, challenging

supposed errors in the jury instructions--were not preserved. We

have examined each under the demanding plain error standard

applicable in such cases, United States v. Olano, 507 U.S. 725

(1993), but find that none even comes close. Defense counsel on

appeal is entitled to search the record for such unpreserved claims
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and call such claims to our attention, but they do not in this

instance warrant separate discussion.

Affirmed.