                                                                                ACCEPTED
                                                                              12-15-00059-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                         6/15/2015 5:09:45 PM
                                                                                CATHY LUSK
                                                                                CLERK

                      12-15-00059-CR

                                                            FILED IN
                                                     12th COURT OF APPEALS
         IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                   TYLER, TEXAS                      6/15/2015 5:09:45 PM
                                                          CATHY S. LUSK
                                                              Clerk

               DERRICK DEMOND COOKS

                               Appellant,                   RECEIVED IN
                                                      12th COURT OF APPEALS
                                                           TYLER, TEXAS
                              v.                      6/15/2015 5:09:45 PM
                                                           CATHY S. LUSK
                  THE STATE OF TEXAS                           Clerk

                                   Appellee

On Appeal from the 241st District Court of Smith County, Texas
                Trial Cause No. 241-1485-14

            ORAL ARGUMENT REQUESTED

                          Austin Reeve Jackson
                          Texas Bar No. 24046139
                          112 East Line, Suite 310
                          Tyler, TX 75702
                          Telephone: (903) 595-6070
                          Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL

Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
Don Davidson
PO Box 1105
Tyler, TX 75710

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702

                                            ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUE PRESENTED ...................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................. 4
ARGUMENT .................................................................................................................. 5

    I.      BECAUSE THE SEARCH OF MR. COOKS' POCKETS
            EXCEEDED THE SCOPE OF ANY LEGALLY PERMISSIBLE
            SEARCH, THE TRIAL COURT ERRED IN DENYING HIS
            MOTION TO SUPPRESS. ............................................................................ 5

     Standard of Review ................................................................................................... 5
     Mr. Cooks Was Detained ............................................................................................
     The Search Exceeded the Limited Scope Search Authorzied by Terry .................... 8
     There Was No Valid Consent to the Search ........................................................... 11

CONCLUSION AND PRAYER .................................................................................. 13
CERTIFICATE OF SERVICE ..................................................................................... 14
CERTIFICATE OF COMPLIANCE ............................................................................ 14

                                                            iii
                                     INDEX OF AUTHORITIES

UNITED STATES SUPREME COURT:

Adams v. Williams,
 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) .................................... 8

Florida v. Bostick,
  501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ................................ 13

Katz v. United States,
 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967) ...................................... 7

Kaupp v. Texas,
 538 U.S. 626, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) ................................ 12

Maryland v. Wilson,
 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) .................................... 6

Minnesota v. Dickerson,
 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ................................ 8, 9

Sibron v. New York,
  392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ...................................... 7

Terry v. Ohio,
 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ........................................ passim

FEDERAL COURTS OF APPEAL:

United States v. Dalpiaz,
 494 F.2d 374 (6th Cir. 1974) ......................................................................... 11

United States v. Foust,
 461 F.2d 328 (7th Cir. 1972) ......................................................................... 11

United States v. Reyes,
 349 F.3d 219 (5th Cir. 2003) ......................................................................... 11

                                                        iv
TEXAS COURT OF CRIMINAL APPEALS:

Amador v. State,
 221 S.W.3d 666 (Tex.Crim.App. 2007) ........................................................ 5

Baldwin v. State,
 278 S.W.3d 367 (Tex.Crim.App. 2009) ........................................................ 9

Carmouche v. State,
 10 S.W.3d 323 (Tex.Crim.App. 2000) .......................................................... 6, 11, 12

Davis v. State,
 829 S.W.2d 218 (Tex.Crim.App. 1992) ........................................................ 10, 11

Ford v. State,
 158 S.W.3d 488 (Tex.Crim.App. 2005) ........................................................ 9

Hamal v. State,
 390 S.W.3d 302 (Tex.Crim.App. 2012) ........................................................ 8

Lippert v. State,
  664 S.W.2d 712 (Tex.Crim.App. 1984) ........................................................ 10

State v. Ibarra,
  953 S.W.2d 242 (Tex.Crim.App. 1997) ........................................................ 12

State v. Velaquez,
  994 S.W.2d 676 (Tex.Crim.App. 1999) ........................................................ 12, 13

State v. Weaver,
  349 S.W.3d 521 (Tex.Crim.App. 2011) ........................................................ 6

St. George v. State,
  237 S.W.3d 720 (Tex.Crim.App. 2007) ....................................................... 5

Wood v. State,
 515 S.W.2d 300 (Tex.Crim.App. 1974) ........................................................ 11

                                                    v
TEXAS COURTS OF APPEAL:

Arroyo v. State,
 881 S.W.2d 784 (Tex.App.—Houston [14th Dist.] 1994) ............................. 12

Graham v. State,
 893 S.W.2d 4 (Tex.App.—Dallas 1994, no pet.)........................................... 9

Flores v. State,
  824 S.W.2d 704 (Tex.App.—Corpus Christi 1992) ...................................... 10

Harris v. State,
 827 S.W.2d 49 (Tex.App.—Houston [1st Dist.] 1992) ................................. 9, 10

Josey v. State,
  981 S.W.2d 831 (Tex.App.—Houston [14th Dist.] 1998) ............................. 6

STATUTES AND CONSTITUTIONAL PROVISIONS:

TEX. CODE. CRIM. PROC. art. 38.23 ................................................................... 7

U.S. CONST. AMEND. IV .................................................................................... 7

TEX. CONST. art. I § 9 ........................................................................................ 7

                                                            vi
                                12-15-00059-CR

                    IN THE TWELFTH COURT OF APPEALS
                              TYLER, TEXAS

                        DERRICK DEMOND COOKS

                                         Appellant,

                                       v.

                           THE STATE OF TEXAS

                                            Appellee

         On Appeal from the 241st District Court of Smith County, Texas
                         Trial Cause No. 241-1485-14

TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Derrick Cooks, and files

this brief pursuant to the Texas Rules Of Appellate Procedure, and would show the

Court as follows:
                           STATEMENT OF THE CASE

      Derrick Cooks seeks to appeal his conviction and sentence for the offense of

possession of a controlled substance. (I CR 78). Mr. Cooks was indicted for this

case in November of last year in the 241st District Court of Smith County. (I CR

1). To this charge he entered a plea of “not guilty” and proceeded to trial by jury.

(I CR 78). After being found guilty, Mr. Cooks was sentenced by that jury to serve

a term of two years’ confinement and pay a fine of $6,500. (Id.). Sentence was

pronounced on 3 March 2015 and notice of appeal then timely filed. (I CR 78, 89).

                                ISSUES PRESENTED

          I.     BECAUSE THE SEARCH OF MR. COOKS’ POCK-
                 ETS EXCEEDED THE SCOPE OF ANY LEGALLY
                 PERMISSIBLE SEARCH, THE TRIAL COURT
                 ERRED IN DENYING HIS MOTION TO SUPPRESS.

                             STATEMENT OF FACTS

      On 30 June 2014, an officer with the Smith County Sherriff’s Office was

working in tandem with undercover officers who were observing a suspected drug

house. (III RR 11). That officer was given information describing a vehicle that

had just left that house. (III RR 11). After observing the car commit a traffic vio-

lation the officer initiated a traffic stop. (III RR 12).

      Upon approaching the vehicle the officer observed an infant in the back seat,

a young woman in the driver’s seat, and Appellant, Mr. Derrick Cooks, in the front

passenger seat. (III RR 15). After checking the driver’s license the officer discov-

                                            2

ered that she had outstanding warrants and he placed her in handcuffs with the in-

tent that she would be arrested. (III RR 16). He then approached Mr. Cooks and

asked him to step out of the car. (III RR 16). According to the officer, at that

point he was intending simply to make sure he could release the vehicle and the in-

fant to Mr. Cooks. (III RR 16). Upon exiting the vehicle, the officer observed

that, in his opinion, Mr. Cooks appeared nervous, fumbled with his cell phone, and

otherwise seemed suspicious. (Id.). As a result, the officer conducted a Terry pat-

down for his safety. (III RR 17).

      Despite finding no weapons, the officer nonetheless then conducted a second

search of Mr. Cooks by instructing Mr. Cooks to walk to the back of the car and

empty his pockets. (III RR 17). When he did so, Mr. Cooks removed from his

pocket a bottle that was later determined to contain narcotics. (III RR 18). On this

basis, Mr. Cooks was arrested and subsequently charged with the offense of pos-

session of a controlled substance. (III RR 19).

      In response to the charge Mr. Cooks entered a plea of “not guilty” and by

way of a motion to suppress and an evidentiary hearing on the same developed the

argument that the seized narcotics should have been suppressed, as they were the

result of an illegal search. (I CR 26, 78). The trial court, however, disagreed and

denied the motion. (III RR 40). The trial proceed, Mr. Cooks was convicted, and

he was then sentenced to serve a term of two years’ confinement. (I CR 78). Sen-

                                         3

tence was pronounced on 3 March 2015 and notice of appeal then timely filed. (I

CR 78, 89).

                       SUMMARY OF THE ARGUMENT

      Both the United States Constitution and the Texas Constitution prohibit un-

reasonable searches and seizures.      Generally, searches without warrants are

deemed unreasonable. One exception to this rule is a protective Terry pat-down of

an individual who has lawfully been detained. However, the scope of a Terry

search is limited to an officer’s pat-down search for weapons which may reasona-

bly place him in fear of his life or serious injury. Once an officer has conducted

such a search and that search has produced no weapons or contraband, any further

search must be justified my probable cause and cannot be conducted merely be-

cause the officer is suspicious that a person might have an unarticulated “some-

thing else” in his pockets.

      Here, the detaining officer conducted a Terry frisk and found no weapons.

After doing so and finding no weapons, the officer then ordered Mr. Cooks to emp-

ty his pockets. That second search, conducted on the officer’s mere suspicion or

hunch that there may be something in Mr. Cooks’ pockets the nature of which was

not immediately discernable to the officer, was not constitutionally permissible and

the resulting motion to suppress drug evidence recovered from that search should

have been granted.

                                         4

                                   ARGUMENT

      I.     BECAUSE THE SEARCH OF MR. COOKS’ POCKETS
             EXCEEDED THE SCOPE OF ANY LEGALLY PERMIS-
             SIBLE SEARCH, THE TRIAL COURT ERRED IN
             DENYING HIS MOTION TO SUPPRESS.

      In the instant case Mr. Cooks filed a motion to suppress in which he sought

to exclude from trial a bottle of PCP that officers recovered as a result of searching

his pockets. (I CR

(I CR 32). A hearing was held on this motion during which time the detaining of-

ficer was the only witness to testify. (III RR 10-40). Following the hearing the tri-

al court made written findings of fact and conclusions of law and ultimately found

that the motion to suppress should be denied. (III RR 35-40). However, because

the trial court erred in concluding that the second search of Mr. Cooks’ pockets

was constitutionally permissible, the Court should reverse the underlying judgment

and remand the case for a new trial.

      Standard of Review

      A trial court’s ruling on a motion to suppress is reviewed under a bifurcated

standard. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). A trial

court’s determination of historical facts is given almost total deference while the

application of law to those facts is reviewed de novo. Id. As such, the trial court

acts as the sole judge of the credibility of the witnesses and the weight to be given

their testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007).

                                          5

On appeal, the party that prevailed at trial is generally afforded the most favorable

vie of the evidence and the reasonable inferences that can be drawn from the same.

State v. Weaver, 349 S.W.3d 521, 525 (Tex.Crim.App. 2011); Carmouche v. State,

10 S.W.3d 323, 332 (Tex.Crim.App. 2000).

      Mr. Cooks Was Detained

      After hearing evidence on the motion to suppress, the trial court, although

not explicitly, effectively found that Mr. Cooks had been detained. (I CR 38-39).

Moreover, although the issue was uncontested at trial, that the actions of the officer

in this case constituted an investigatory detention, or seizure is worth nothing as

part of the analysis of this case. See Maryland v. Wilson, 519 U.S. 408, 412-14,

117 S.Ct. 882, 885-86, 137 L.Ed.2d 41 (1997) (holding that when the driver of a

vehicle is detained any passengers in that vehicle are detained as well); see also

Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (For

Fourth Amendment purposes a “seizure” occurs when “by means of physical force

or show of authority, [an officer] has in some way restrained the liberty of a citi-

zen.”). Similarly, to aid the Court’s in its review of the issue before it, Appellant

would concede that the driver in this instance, as found by the trial court, was le-

gally detained. (I CR 38); See, e.g., Josey v. State, 981 S.W.2d 831, 837-38

(Tex.App.—Houston [14th Dist.] 1998, pet. ref’d) (driver and passengers may be

detained on the basis of a traffic violation committed by the driver).

                                          6

      This does not, however, end the inquiry.

      Simply because someone has been legally detained does not mean that any

subsequent search of their person is automatically legal. Katz v. United States, 389

U.S. 347, 357, 19 L.Ed.2d 576, 88 S.Ct. 507, 514 (1967) (holding that such search-

es are per se unreasonable and subject to only a few, limited circumstances). In

fact, a person detained by law enforcement continues to enjoy protections against

searches from both the United States and Texas constitutions. U.S. CONST. amend.

IV; TEX. CONST. art. I § 9; TEX. CODE CRIM. PROC. art. 38.23(a).

      One of the few exceptions to the “inestimable right of personal security” the

government intrusion on which is protected by our founding state and federal doc-

uments was discussed in the landmark case of Terry v. Ohio. Terry, 392 U.S. at 8-

9. In Terry, the Supreme Court held that a police officer who has reasonable, ar-

ticulable suspicion “that the individual whose suspicious behavior he is investigat-

ing at close range is armed and presently dangerous to the officers or others” may

be searched “to determine if the person is in fact carrying a weapon.” Id. at 24.

On the same day it issued its opinion in Terry, the Supreme Court issued an opin-

ion in Sibron v. New York in which it explicitly limited the nature of the search dis-

cussed in Terry to those few searches the “only goal of which might conceivably”

result in in the discovery of dangerous weapons. Sibron, 392 U.S. 40, 65, 88 S.Ct.

1889, 20 L.Ed.2d 917 (1968). The Court has continued to restrict Terry searches

                                          7

in an unequivocal manner, explaining that “[t]he purpose of this limited search is

not to discover evidence of a crime, but to allow the officer to pursue his investiga-

tion without fear of violence.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct.

1921, 32 L.Ed.2d 612 (1972). Any search that exceeds that limited scope produces

results that must be suppressed. Minnesota v. Dickerson, 508 U.S. 366, 373, 113

S.Ct. 2130, 124 L.Ed.2d 334 (1993).

      This Search Exceeded the Limited Scope Search Authorized by Terry

      Appellant does not argue that the initial pat-down search of Mr. Cooks was

illegal or impressible. Rather, Appellant concedes, given the totality of the cir-

cumstances, that the officer could permissibly conduct a pre-emptive, protective

search of Mr. Cooks.        See, e.g., Hamal v. State, 390 S.W.3d 302, 308

(Tex.Crim.App. 2012) (holding that nervousness when coupled with additional

factors may justify a protective search). However, the officer admitted at trial that

after initially patting down Mr. Cooks he found no weapon and conducted a second

search of his pockets to see if Mr. Cooks “was still trying to hide something.” (III

RR 32). After making this statement the officer attempted to walk it back some-

what explaining:

      There’s a potential [after the pat-down] to have a weapon in his pock-
      et. I don’t know exactly what’s in his pocket. I mean, I can feel loose
      change. There’s other items in the pocket. Could be a small pocket-
      knife. Could not be. I mean, I have no idea what’s in his pocket.

(III RR 33).

                                          8

      The problem with this comment is that a Terry search is limited to those sit-

uations where “a reasonably prudent man in the circumstances would be warranted

in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27.

Importantly, the officer in this case, even while noting there might have been

something else in Mr. Cook’s pocket, was unable to describe anything he reasona-

bly believed to be a threat: no bulge in the shape of a weapon, no sharp or danger-

ous object, nothing. Where the incriminating character of an object is not reasona-

bly and immediately apparent, an office has no authority to perform a search to re-

trieve the same. Graham v. State, 893 S.W.2d 4, 6 (Tex.App.—Dallas 1994, no

pet) (citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d

334 (1993)).   “[W]hen the conditions of the ‘plain feel’ doctrine … are not pre-

sent, an officer conducting a valid investigative detention must have probable

cause in order to conduct a search for non-weapon contraband or other evidence.”

Baldwin. v. State, 278 S.W.3d 367, 372 (Tex.Crim.App. 2009). And an inarticu-

late suspicion or hunch, as the Court has here, is not the stuff of probable cause.

Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005). Because the officer

found no weapons or other immediately identifiable contraband, and because he

lacked probable cause to conduct his search exceeding that scope permissible by

Terry, there was no legal basis to support any additional search of Mr. Cooks’

pockets. See, e.g., Harris v. State, 827 S.W.2d 49, 50-52 (Tex.App.—Houston [1st

                                          9

Dist.] 1992, pet. ref’d) (officers cannot extend Terry search to contents of pockets

on mere hunch or possibility of finding contraband or a weapon).

         Additionally, to the extent that the officer in this instance was concerned

about his safety, that concern must have been reasonable. Terry, 392 U.S. at 28.

That is, the officer must have been reasonable concerned that Mr. Cooks was car-

rying a weapon in his pockets the nature of which posed a legitimate risk to his

safety. Id. Yet we know this was not the case as the officer had already check for

weapons and found none and further testified that, at most, he thought Mr. Cooks

might have “a small pocketknife.” (III RR 33). A small knife, razor blades, nee-

dles or other such weapons does not rise to the level of threatening officer safety to

the point that an additional search can be justified. See Davis v. State, 829 S.W.2d

218, 220 (Tex.Crim.App. 1992) (scope of search is limited to the discovery of

weapons that could reasonably be used to harm the officer); Harris, 827 S.W.2d at

52; Flores v. State, 824 S.W.2d 704, 706 (Tex.App.—Corpus Christi 1992, no

pet.).

         Terry permits a search only for those weapons that could reasonably
         harm the police officer. “If in the course of a pat-down frisk the of-
         ficer satisfies himself that the suspect has no [such] weapons, the of-
         ficer has no valid reason to further invade the suspect’s right to be free
         of police intrusion absent probable cause to arrest.”

Davis, 829 S.W.2d at 221 (quoting Lippert v. State, 664 S.W.2d 712, 721

(Tex.Crim.App. 1984). The purpose of a limited search after an investigatory stop

                                            10

is not to discover evidence of a crime, but to allow an officer to pursue an investi-

gation without the fear of violence.        Wood v. State, 515 S.W.2d 300, 306

(Tex.Crim.App. 1974). Once the officer in this case relieved himself of that fear,

he had no legal authority to search Mr. Cooks’ pockets and the trial court erred in

concluding otherwise. To this end, Appellant would urge the Court to adopt the

language of the Court of Criminal Appeals in Davis and hold:

      Although there were adequate grounds to search appellate for weap-
      ons, the scope of the search conducted by [the officer] clearly exceed-
      ed any justification that he might have had to search for weapons for
      his protection and therefore rendered the [drugs] inadmissible under
      Article I, section 9 of the Texas Constitution and the Fourth and Four-
      teenth Amendments to the United States Constitution.

 Davis, 829 S.W.2d at 221.

      There Was No Valid Consent to the Search

      The State will likely argue in response that Mr. Cooks consented to the

search of his pockets. However, it should be noted that the “request” to empty his

pockets was not so much a request or option pretend to Mr. Cooks, but an instruc-

tion to submit to a search given to him by an officer who had detained him. See,

e.g., United States v. Reyes, 349 F.3d 219, 225 (5th Cir. 2003) (officer’s verbal or-

der to empty pockets constituted a search); United States v. Dalpiaz, 494 F.2d 374,

377 (6th Cir. 1974) (same); United States v. Foust, 461 F.2d 328, 331 (7th Cir.

1972) (same). To the extent that the request made of Mr. Cooks was a request to

which he consented, to be valid that consent must have been voluntary. Car-

                                         11

mouche v. State, 10 S.W.3d 323, 331(Tex.Crim.App. 2000). Voluntariness must

be proven by the State by clear and convincing evidence and is determined by a re-

view of the totality of the circumstances. State v. Ibarra, 953 S.W.2d 242, 243

(Tex.Crim.App. 1997); Carmouche, 10 S.W.3d at 331.

      Here, prior to asking Mr. Cooks to empty his pockets, the officer had made a

show of force by activating his vehicle lights, pulling over the driver of the vehicle,

ordering Mr. Cooks out of the car, and by instructing Mr. Cooks to walk to the rear

of the vehicle. (III RR 10-35). Mr. Cooks yielded to this show of authority and

was, for Fourth Amendment purposes, detained. Kaupp v. Texas, 538 U.S. 626,

629, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (a “seizure” occurs when “by means

of physical force or show of authority, [an officer] has in some way restrained the

liberty of a citizen.”). Additionally, at that point, the driver of the vehicle was

standing in handcuffs and was being arrested on outstanding warrants. (III RR 31).

So, effectively the officer prevented Mr. Cooks from both waling away and driving

away. After thus restraining Mr. Cooks, the officer also failed to inform him that

he had the right to refuse to consent to any search. See State v. Velasquez, 994

S.W.2d 676, 679 (Tex.Crim.App. 1999) (an officer’s failure to advise a person of

their right to refuse consent is a factor courts may consider); Arroyo v. State, 881

S.W.2d 784, 789 (Tex.App.—Houston [14th Dist.] 1994, no pet.). Under these

circumstances no reasonable person would have believed they were free to leave or

                                          12

refuse to comply with the instructions of an officer who had substantially infringed

on their liberty. Id. at 678-79 (the test is “whether the police conduct would have

communicated to a reasonable person that the person was not free to decline the

officers’ requests or otherwise terminate the encounter.”) (citing Florida v. Bostick,

501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Therefore, because any

consent that was arguably given was involuntary, it cannot serve to cure an other-

wise unconstitutional search.

                            CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, counsel prays that because the

search of Mr. Cooks was constitutionally impressible, and because, therefore, the

trial court erred in denying his motion to suppress the evidence seized subsequent

to that search, that the Court reverse the underlying judgment and remand the case

for a new trial.

                                                  Respectfully submitted,

                                                  /s/ Austin Reeve Jackson
                                                  Texas Bar No. 24046139
                                                  112 East Line, Suite 310
                                                  Tyler, TX 75702
                                                  Telephone: (903) 595-6070
                                                  Facsimile: (866) 387-0152

                                         13

                              CERTIFICATE OF SERVICE

       I certify that a true and correct copy of this brief was delivered to counsel for the

State by e-file concurrently with its filing in the Court.

                                                       /s/ Austin Reeve Jackson

                          CERTIFICATE OF COMPLIANCE

       I certify that this document complies with the requirements of Rule 9.4 and con-

sists of 3,136 words.

                                                       /s/ Austin Reeve Jackson

                                              14


531 F.2d 1297
In re Issac WASHINGTON and Peter Rinaldi, Defendants-Appellants.
No. 75--1773.
United States Court of Appeals,Fifth Circuit.
May 24, 1976.

Melvyn Kessler, Miami, Fla.  (court appointed), for Sole.
Mark R. Baer, Miami, Fla.  (court appointed), for Rinaldi.
James J. Hogan, Miami Beach, Fla.  (court appointed), Joseph Mincberg, Miami, Fla.  (court appointed), for Washington.
Terence M. Brown, Appellate Section, Crim.  Div., U.S. Dept. of Justice, Washington, D.C., Robert W. Rust, U.S. Atty., Miami, Fla., for appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before MORGAN, CLARK and TJOFLAT, Circuit Judges.
LEWIS R. MORGAN, Circuit Judge:

1
Defendants Washington and Rinaldijoin with the government in its appeal of the district court's denial of a government motion to dismiss the indictment against defendants.  Relevant facts are as follows: defendants were convicted in state court for conspiracy to rob the Doral Beach Hotel in Miami, Florida.  Following that conviction, defendants were likewise tried and convicted in federal court1 for federal crimes arising out of the same facts.  While their conviction was pending on appeal before this court, defendants Sole2 and Rinaldi filed a motion to supplement the record on appeal with the United States Department of Justice Policy (hereinafter referred to as Petite Policy)3 that precludes the Department from trying a person a second time on essentially the same charges that were the subject of a state prosecution.  The government responded to the motion, affirming the existence of the policy, and subsequently moved for remand of the case to the district court to allow the government to dismiss the indictment; we granted the government's motion to remand.4  Thereafter, the government filed a motion with the district court, pursuant to F.R.Cr.P. 48(a), to dismiss the indictment, arguing that federal prosecution of defendants had violated its own internal policy.  Utilizing the discretion accorded it under Rule 48(a), the district court denied the motion.  Both the government and the defendants appeal that denial.

2
In denying the government's motion to dismiss, Judge King relied on language in Rule 48(a),5 allowing dismissal of an indictment only 'by leave of court,' to justify his position that the prosecution did not have total discretion over this matter.  We agree that the trial court has a role in any decision to dismiss an indictment.  While this court has held, en banc, that the judiciary cannot require the executive branch to bring prosecution against an individual, United States v. Cox., 342 F.2d 167 (5th Cir. 1965), there is a distinction between the prosecution's power to initiate and its power to terminate a prosecution.  United States v. Cowan, 524 F.2d 504, 505 (5th Cir. 1975).  The issue here is the circumstances under which the trial court can exercise its discretion to deny prosecution's motion to dismiss.

3
In his order denying the government's motion to dismiss, Judge King cited two primary reasons for his decision: (1) the government's motion to dismiss was not made until after the trial had been completed and a conviction had been obtained, and (2) the government's admissions, during the trial, of its knowledge that a state conviction had been obtained and of its intention, nonetheless, to pursue the federal prosecution.

4
The first reason--the post-conviction timing of the government's motion--is not sufficient, alone, to justify the court's refusal to dismiss the indictment.  In Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975), the Supreme Court vacated the judgment and remanded a case, in which the government had moved for dismissal on grounds of the Petite Policy after a conviction had been obtained, to permit the government to dismiss charges against the defendant.  While the opinion in Watts was only a memorandum order that did not analyze the relevancy of the stage of proceeding at which the motion is made, the result reached there persuades us that a motion for dismissal pursuant to Rule 48(a), and based on a violation of the Petite Policy, cannot be denied merely because it was made after a conviction had been obtained.

5
The second reason advanced in the order--the government's knowledge of the state conviction during the federal prosecution--raises serious questions about the government's good faith in this matter.  In his order denying the motion for dismissal, Judge King noted that the government prosecutor was fully informed of the state prosecution of defendants:

6
The government also stated at the hearing that at no time during the first trial, which ended in a mistrial, or during the second trial, which resulted in the conviction of these defendants, was the policy, or its violation, ever brought to the court's attention.  In fact, the court specifically inquired of the special trial attorney sent to Miami from Washington by the Department of Justice to try this case, why the government was insisting on a federal trial of these defendants. Government's trial counsel advised the court that the Department of Justice was adamant in their decision that the federal trial proceed because there was grave concern that the state convictions would be reversed on appeal.  The Department of Justice trial attorney, at a special conference called for the purpose of discussing the offer of at least one defendant to plead guilty, stated that the Department's position was that it could not agree to any plea involving concurrent confinement, and he had been instructed to proceed with the trial.  Under those circumstances, it is clear the Department of Justice was completely aware of the proceedings in the Southern District of Florida.  Record, p. 33 (emphasis added).

7
From the government attorney's comments at trial, it seems obvious that the Department of Justice was not only aware that defendants had been tried and convicted on state charges, but also had consciously weighed the possibility of not proceeding on federal charges because a state conviction had been obtained.  Of course, the government could argue that mere awareness of a previous state prosecution does not insure that the prosecuting attorney is aware of the Petite Policy or that the policy has been complied with, in that compliance requires the approval of the appropriate Assistant Attorney General.  Yet, at some point, the public interest in avoiding manipulation of the judicial system demands that the Department of Justice take responsibility for administering its own internal rules.  That point has been reached in this case.

8
Here, Judge King inquired of the prosecuting attorney why the Department of Justice was pursuing this federal action when a state conviction had been obtained and why, in the alternative, the government could not accept the tendered pleas of guilty with the suggestion that the federal sentences run concurrently with the state terms.  The trial attorney answered that the decision had been made in Washington, by presumably appropriate officials, to prosecute this matter to the hilt and not to accept concurrent sentences.  In addition, the attorney stated that because the Department feared reversal of the state conviction, it was adamant that federal prosecution proceed.

9
There are several possible explanations for the government's one hundred eighty degree turn on the issue of federal prosecution of the defendants.  The first possibility: the trial attorney had obtained no permission from Washington, but was merely acting on his own in his decision to prosecute defendants on federal charges, even though state convictions had been obtained.  There is, however, no evidence to indicate that this trial attorney was lying and absent such evidence we refuse to infer such blatant bad faith from an officer of the court.  Also, even if the trial attorney had not received explicit instructions from Washington as to whether a federal prosecution was appropriate after state convictions had been obtained, he was on notice, through the questioning of Judge King, to inquire further into the matter with the proper officials from the Department.  Rather, evaluating the government's statements during trial and its later conduct, another explanation seems much more probable to us: government officials decided to prosecute defendants, notwithstanding their internal policy against such a prosecution, because of their fear that the state convictions would be reversed upon appeal.  Then, after the state conviction was upheld and defendants raised, for the first time, the government's violation of its own internal policy as error upon appeal, the government decided that the case should never have been brought.6  Indeed, the government never alleges that its non-compliance with the Petite Policy was inadvertent.  It merely states that the appellate attorney for the government looked into the policy after appeal was brought and decided that the trial attorney should not have prosecuted the defendants.  In fact, the government violated its policy by even trying defendants after they had been tried in state court, regardless of the status of those convictions after appeal, since the policy speaks in terms of state prosecutions, not state convictions.  Yet, judging from the government's position at trial, it was prosecuting defendants on federal charges only because it feared reversal of the state conviction.  Indeed, the government contended at oral argument that it was the sole judge of when its policies were to be followed and when they were to be disobeyed.

10
In Cowan v. United States, supra, we discussed the amount of discretion accorded the judiciary in a government motion to dismiss an indictment pursuant to Rule 48(a).  We noted that 'the history of the Rule belies the notion that its only scope and purpose is the protection of the defendant.  (Rather), it (is) manifestly clear that the Supreme Court intended to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice.' 524 F.2d at 512.  Further:

11
(I)t seems altogether proper to say that the phrase 'by leave of court' in Rule 48(a) was intended to modify and condition the absolute power of the Executive, consistently with the Framer's concept of Separation of Powers, by erecting a check on the abuse of Executive prerogatives. . . . The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated.  The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially distrubed unless clearly contrary to manifest public interest.  Id. at 513 (emphasis added).

12
Throughout Cowan, we made several references to the requirement that the government act in good faith whenever it seeks dismissal of an indictment in a pending prosecution.  From our examination of the record in this case, we feel that the government has not acted in good faith in this matter.7  If we granted their motion to dismiss, we would be encouraging a manipulation of the judiciary clearly contrary to 'manifest public interest.'

13
In making our decision to affirm, we need not decide whether the Department of Justice's uneven application of its own policy violates equal protection standards as they have been interpreted to apply to federal governmental action under the Fifth Amendment.  Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).  It is doubtful that an internal policy of the Department of Justice grants to the accused a vested right to be free from an otherwise valid prosecution.  At any rate, the district judge based the exercise of his discretion on two factors: prosecutorial bad faith and the post-conviction timing of the motion to dismiss.  While we have noted that reliance on the post-conviction status of the motion is not sufficient in itself to justify denial of the motion to dismiss, we do not fault the district judge for considering it as one of two factors that govern the exercise of his discretion in this case.  Therefore, we hold that both the post-conviction stage at which the motion was made and prosecutorial bad faith form a valid insulation for the district judge's action from any finding by this court that his discretion was abused.

14
AFFIRMED.

TJOFLAT, Circuit Judge (dissenting):

15
I respectfully dissent.

16
I agree that the government's power to dismiss an indictment under Rule 48(a) is not absolute.  I also agree that a Petite motion may be denied if granting the motion would be 'clearly contrary to manifest public interest,' United States v. Cowan, supra, 524 F.2d at 513.  With some hesitation, I agree that, although the primary purpose of the 'by leave of court' requirement in Rule 48(a) is to protect the defendant from the government's bad faith1, a trial judge may use his Rule 48(a) power to prevent other types of manipulation of the judicial system.  I am also willing to agree, at least arguendo, that one such type of bad-faith manipulation would be a governmental tactic of (a) prolonging a federal prosecution until the defendants' state court convictions were beyond reversal and then (b) moving for dismissal of the indictment after being thus assured that the defendants would not go unpunished.  However, I cannot agree that the record in this case establishes this or any other type of bad faith on the part of government counsel.

17
I have searched this record from begining to end without finding anything to justify the appellate factfinding indulged in by the majority.  The scenario which the majority offers as the most probable version of what happened behind the scenes at the Department of Justice is the product of sheer peculation.  The only concrete fact relied upon by the majority (see supra at n. 6) is the timing of the government's motion for dismissal.  An intermediate appellate court affirmed these defendants' state court convictions on April 30, 1974, see Scaldeferri v. State, 294 So.2d 407 (Fla.App.1974), and the government's motion was not filed until September 30, 1974.  The majority has overlooked the later history of the state prosecution.  The Supreme Court of Florida did not deny certiorari until October 3, 1974, see Pompeo v. State, 303 So.2d 21 (Fla.1974), and the United States Supreme Court denied certiorari only on November 11, 1974, see Washington v. Florida, 419 U.S. 993, 95 S.Ct. 304, 42 L.Ed.2d 266 (1974).  Both of these actions, it will be noted, were subsequent to the government's motion for dismissal.  An examination of the opinion of the intermediate state court reveals substantial issues which may well have engaged the attention of a higher court.  Indeed, one of the five justices of the Supreme Court of Florida dissented from the denial of certiorari.  See, 303 So.2d at 21.  In view of these facts, I cannot join in the majority's assumption that, after April 30, 1974, the government necessarily abandoned any fears that the state convictions might be overturned.  Since this assumption is basic to the majority's finding of bad faith, I must reject that finding as well.

18
In my view, the following sequence of events is the one best supported by the record.  The government lawyers involved in this case were simply unaware that the Petite policy, or at least unaware that the policy may have been violated, until defendants' appellate counsel raised this issue on August 2, 19742. Government counsel then investigated, discovered the inadvertent noncompliance with Department policy, and referred the matter to the appropriate Assistant Attorney General.  This official then decided that, had the proper procedures been followed, he would not have authorized the prosecution.  Thereupon, without reference to the status of the state court proceedings (in which, after all, petitions for certiorari were still pending), trial counsel moved to dismiss the indictment.  The most that I can charge the government with is a negligent failure to have handled the Petite issue earlier, without outside prodding from defense counsel.  Such negligence is not the type of misconduct which will justify denying a Rule 48(a) motion.  The Supreme Court routinely remands cases 'to permit the Government to dismiss the charges', even when government counsel fails to discover a Petite violation until the case has reached the High Court.  See, e.g., Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975); Ackerson v. United States, 419 U.S. 1099, 95 S.Ct. 769, 42 L.Ed.2d 796 (1975); Hayles v. United States, 419 U.S. 892, 95 S.Ct. 168, 42 L.Ed.2d 136 (1974).  These cases compel the conclusion that something more than careless inattention to internal government procedures is necessary to justify resisting a Petite motion for dismissal.

19
I realize that the scenario which I have painted is not the only possible explanation of the government's conduct in this case, although it is the one most in accord with what we know of the facts.  Indeed, the majority's version of events cannot be entirely excluded as a possibility.  However, reversal of the order entered below does not require acceptance of my version to the exclusion of all others.  To me, the granting of a Rule 48(a) motion cannot be 'clearly contrary to manifest public interest' by reason of governmental misconduct, when that misconduct itself is far from 'clear' or 'manifest'.  At the very least, a finding of misconduct (particularly a finding by an appellate court) should be clearly the likeliest explanation of what actually happened.  The majority's speculation does not pass this test.  It is, at best, merely one of several possible reconstructions of events.  There is no basis for considering it more probable than any other.  It is clearly less supported by the record than the version which I have offered.  I would reverse the order denying the government's motion to dismiss the indictment.

1
 A mistrial resulted from defendant's first trial in federal court; defendants were convicted in their second federal trial

2
 Pasquale Sole, originally a defendant-appellant in this case, died during appeal of this case.  We have, therefore, granted the joint motion of counsel to remand the case to the district court to allow counsel to move for dismissal of the indictment against him

3
 This policy, established by Attorney General William Rogers in 1959, received its name from the case in which it was first recognized judicially: United States v. Petite, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960).  Promulgated through a Department of Justice Press Release on April 6, 1959, the policy provides, in the main, that a federal prosecution should not follow a state prosecution predicated on the same act or acts unless a compelling federal interest is involved, in which case prior authorization should be obtained from the appropriate Assistant Attorney General

4
 Counsel for the government argues that implicit in our order to remand was an order to the district court to dismiss the indictment and that, consequently, that court's denial of the motion for dismissal violated our order.  The government relies on the fact that it asked this court to remand 'in order to dismiss the indictment' and that we 'granted' that motion.  Our order read as follows: 'It is ordered that appellee's motion to remand this case . . . to the district court for the Southern District of Florida is granted.'  Conspicuously omitted from our order, was any order to the district judge to dismiss the indictment, without review.  This omission, coupled with the discretion granted to the trial court judge by Rule 48(a), leads us to the conclusion that our original order did not require automatic dismissal by Judge King

5
 Rule 48(a) states:
The Attorney General or the United States Attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate.  Such a dismissal may not be filed during the trial without the consent of the defendant.

6
 The state convictions were affirmed on April 30, 1974; the government moved for dismissal of the federal indictments on September 30, 1974

7
 Judge Tjoflat, in his dissenting opinion, argues that our conclusion of prosecutiorial bad faith is based on an appellate finding of fact unsupported by the record.  He states that the only concrete fact relied upon by the majority to support a determination of bad faith is found at note 6, in which we observe that the prosecution's motion for dismissal was made after the state convictions had been affirmed by the Florida intermediate appellate court.  Judge Tjoflat argues that even this one concrete object of reliance is negated by the fact that the Florida Supreme Court and the United States Supreme Court did not deny certiorari until after the government's motion had been filed.  Without probing the government's beliefs, as it moved for dismissal, of the likelihood that certiorari would be granted, we respectfully dispute Judge Tjoflat's contention that the time sequence between the affirmance of the state convictions and the motion for dismissal is the only concrete fact upon which we rely in reaching our determination of prosecutorial bad faith.  Our primary source of reliance lies in the prosecuting attorney's own statements during trial--statements that are very much a part of the record in that they are included in Judge King's order, and thus, constitute a finding by him.  These statements include admissions that the trial attorney and his supervisors in Washington were aware of the state prosecution, but that they nevertheless were adamant in their decision to prosecute defendants on federal charges.  Judge King confronted government attorneys with these statements at the hearing on the motion to dismiss, but these attorneys never rebutted the clear implications that arise from these statements; that certain unnamed people within the Department of Justice--people who apparently supervised the trial attorney and who certainly should have known about the Petite Policy--decided to prosecute defendants on federal charges even though they were aware of a state prosecution growing out of the same facts.  If the trial attorney's statements were inaccurate, it was the responsibility of the government attorney to point this out to Judge King at the hearing or to this court on appeal.  Judge Tjoflat argues that the record most strongly supports a theory of mere negligence by the government in not adhering to the Petite Policy; that is, government lawyers were unaware that the policy had been violated until defendants' counsel raised the issue on appeal.  Yet, the government has never stated that it was unaware of the Petite conflict at trial or given any explanation for its failure to adhere to the policy.  In short, the majority feels that the government has nowhere rebutted the suggestion of its bad fiath that we find in the record

1
 See e.g., United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert.  denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965)

2
 Technically, defendants' counsel introduced this issue by means of a 'motion to supplement record on appeal', which essentially asked for the press release of April 6, 1959, that had led to the holding in Petite


USCA1 Opinion

          March 25, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1612                                             TIMOTHY B. MITCHELL,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Timothy B. Mitchell on brief pro se.               ___________________               A.  John  Pappalardo,  United  States  Attorney,   Karen  L.               ____________________                               _________          Goodwin,  Assistant   United  States  Attorney,  and   Robert  M.          _______                                                __________          Peckrill,  Assistant Regional  Counsel,  Department of  Health  &          ________          Human Service, on brief for appellee.                                  __________________                                  __________________                      Per  Curiam.     Pro se  claimant Timothy  Mitchell                      ___________      ___ __            appeals a district court judgment that affirmed the denial of            his claim for Supplemental Security Income (SSI) benefits.  A            former competitive  bicyclist, claimant  applied  for SSI  in            June 1989, when he was 24 years old.  He claimed  that he was            disabled due  to chronic pain resulting  from musculoskeletal            inflammation affecting  most of his joints,  particularly his            wrists  and  hands.    Claimant  alleged  that his  pain  was            aggravated by repetitive motions  and hot weather.  In  1987,            claimant secured a bachelors degree in cultural  anthropology            from  the University of Massachusetts.  He held various part-            time  jobs during  and after  college, including  those of  a            dishwasher,  psychiatric  counsellor, prep  cook, psychiatric            aide, stock  person, bus person,  and salesperson.   His last            position  was  as  a  telephone  fundraiser,  which  required            frequent repetitive use of the hands in dialing and writing.                  After claimant's  application  was denied  upon  initial            review and reconsideration, claimant represented himself at a            hearing before an  administrative law judge  (ALJ).  The  ALJ            reviewed the conflicting medical evidence and determined that            claimant had no exertional limitations and only a "marginally                         __            severe somatoform  disorder."1  The ALJ  concluded that while                                            ____________________            1.  Somatoform  disorders  are  characterized  by,"[p]hysical            symptoms for which there are no demonstrable organic findings            or known physiological mechanisms."  See 20 C.F.R.  Part 404,                                                 ___            Subpart P, App. I,  12.07.  This listing may be satisfied if,            inter alia,  the medical evidence documents  either: (1) "[a]            _____ ____                                   ______                                         -2-            the latter condition  moderately impaired claimant's  ability            to maintain persistence and pace, thereby preventing him from            performing his  past work as  a telephone fundraiser,  it did            not prevent the claimant from performing his other past jobs.            Thus, the ALJ  denied claimant's application at  step four of            the  sequential  evaluation  process.     See  Goodermote  v.                                                      ___  __________            Secretary of Health and Human Services, 690 F. 2d 5, 6-7 (1st            ______________________________________            Cir. 1982).  The district court affirmed  this conclusion and            claimant  has  taken  a  timely appeal.    Having  thoroughly            reviewed the record, we also affirm for the reasons discussed            below.                                          I.                 We first review the medical and other evidence which  is            essential  to   a   complete  understanding   of   claimant's            allegations.    The record  discloses that  claimant bicycled            16,000 kilometers  (or 10,000 miles) in  various races during            the summer of 1983.  He began having health problems in 1984,            and consulted  Dr. Robert  Leach, an orthopedic  surgeon, for            pain behind his  left knee.   Claimant reported  that he  had            recently  had  surgery  on  his left  thigh  for  compartment                                            ____________________            history  of  multiple  physical  symptoms  of  several  years            duration,  beginning  before age  30,  that  have caused  the            individual to take medicine frequently, see a physician often            and alter life  patterns significantly; or" (2)  [p]ersistent            nonorganic  disturbance of ...  [s]ensation (e.g., diminished            or   heightened)"  or  (3)  [u]nrealistic  interpretation  of            physical   signs   or    sensations   associated   with   the            preoccupation or  belief that  one has a  serious disease  or            injury;...." Id.,  12.07(A).                          ___                                         -3-            syndrome  and  that  he  had  previously  consulted  numerous            doctors and chiropractors  for various other pains.2   He had            taken Indocin (an anti-inflammatory agent) and Butazolidan (a            rheumatoid arthritis treatment)  without relief and  had also            undergone  a myelogram.   Apart  from an  area of  tenderness            around claimant's  left knee semitendinosis  tendon, physical            exam was completely  normal and Dr. Leach "was impressed with            how  loose [claimant] was."   Dr.  Leach made no diagnosis or            recommendations.  He stated  that he did "not have  any ideas            as to where to go from here" in view of the extensive studies            claimant had already undergone.                  There  are no  medical records  from 1985,  during which            claimant  was apparently  enrolled in  college and  worked at            various  times  as a  prep  cook  and adolescent  psychiatric            counsellor.  In November 1986 claimant consulted Dr. Jonathan            Kurtis,  another orthopedic surgeon,  for bilateral  arm pain            associated with his job as a dishwasher.  Dr. Kurtis reported            that  his evaluation  was negative  for a severe  problem and            that "it was thought  that he had an  occupational tendonitis            of his  wrist."3   Claimant  graduated  from college  in  May                                            ____________________            2.  Compartment  syndrome is  "a  condition caused  by inward            pressure of an artery  reducing blood supply.  It  can result            in  a permanent contraction of  the hand or  foot." See Mosby                                                                ___ _____            Medical Encyclopedia, p. 182 (1985).              ____________________            3.  Claimant returned to Dr. Kurtis in  January 1987 for left            heel pain cause by his cross-country ski boots.  In reporting            these findings  to the Social  Security Administration (SSA),            Dr. Kurtis  emphasized that  he had  not seen claimant  since                                         -4-            1987.   While claimant's vocational report  does not identify            it,  the medical records suggest that at some point following            his graduation  claimant either  volunteered or worked  in an            administrative  position with the Institute for International            Development and Cooperation.                 In  September  1987   claimant  consulted  Dr.  Lawrence            Schiffman, a rheumatologist,  complaining of bilateral  wrist            pain  while he was working  as a dishwasher  and a carpenter.            He reported  a history of tendonitis in his shoulders, knees,            and elbows  (epicondylitis) while also  complaining of  groin            pain and  lower  back  pain,  although  the  latter  was  not            chronic.     Claimant  denied  morning  stiffness  and  sleep            problems.  Physical examination disclosed that claimant had a            full range of musculoskeletal motion, although he experienced            tenderness at the base of the thumb and Achilles tendon.  Dr.            Schiffman recorded an impression of tendonitis and prescribed            Feldene, an  arthritis medication.   Follow-up lab  tests for            rheumatoid  arthritis were  negative.4   Claimant  apparently            travelled to Africa at some point in 1988 and returned to Dr.            Schiffman in April with complaints of pain at the base of the            thumbs  and groin.   He  again denied  morning stiffness;  no                                            ____________________            1987 and had no diagnosis consistent with chronic disability.            4.  In January  1988, Dr. Schiffman advised  claimant that he            had been  unable  to  make  a diagnosis  of  systemic  tissue            connective disease (arthritis) based on his laboratory  tests            and physical examination.                                            -5-            swelling was present.   Apart  from the  areas of  tenderness            noted, physical exam was essentially normal.  Dr. Schiffman's            again recorded  an impression of tendonitis  and continued to            prescribe  medications.   Follow-up lab tests  for rheumatoid            arthritis, Lyme disease, and HIV were negative.                     At  some point  during 1988  claimant also  travelled to            Denmark.    There he  sought further evaluation  of his pain.            Claimant returned  to Dr. Schiffman in  July 1988 complaining            of  bilateral  wrist, groin,  and thigh  pain.   He  was then            taking Ibuprofen. Claimant reported that he  was able to swim            but  that this  resulted in  increased  pain.   Physical exam            disclosed  no  swelling nor  other  positive  findings.   Dr.            Schiffman advised  claimant to  stop swimming  and prescribed            ultrasound therapy for his wrists. Between July and September            1988 claimant underwent  weekly ultrasound treatments at  the            Easthampton   Physical   Therapy  Services.      He  reported            experiencing some  improvement from  the pain in  his wrists,            although he did not attribute it to the treatments.5  At  the            conclusion of  the treatments Dr. Schiffman referred claimant            to  Dr.   Allison  Ryan,   a  specialist  in   neurology  and            psychiatry, stating that he had "not been able to establish a                                            ____________________            5.  Claimant also consulted an occupational  therapist at the            Communication  Enhancement Clinic of  the Children's Hospital            in Boston, although he  was not referred there by  any health            care  providers identified  in the  record.   Claimant sought            computer  components to  eliminate  the need  for  repetitive            wrist motions.                                              -6-            diagnosis" although he  felt claimant's  symptoms were  "most            likely   due   to   an   overuse   syndrome,    worsened   by            deconditioning."6                   In November  1988 claimant  applied for services  at the            Massachusetts  Rehabilitation  Commission  (MRC).     Shortly            thereafter  he   began  working  part-time  as   a  telephone            fundraiser for  the Progressive  Group, Inc.   On January  4,            1989,  claimant  returned  to  Dr. Schiffman,  continuing  to            complain of "tendonitis" in  his wrists and knees.   Physical            exam  again disclosed no swelling and a full range of motion.            Claimant  denied morning stiffness and reportedly was walking            regularly (10-20  minutes).   On the following  day, claimant            was examined  by Dr. Charles Brummer, a  family physician who            evaluated  claimant  for  the  MRC.   Dr.  Brummer  recounted            claimant's extensive  history of complaints  and unsuccessful            treatments for pain in his legs, hips, shoulders, and elbows.            Despite   treatment   with  multiple   medications,  claimant            reported that  he experienced no  relief.  Physical  exam was            normal, with a  full range of  musculoskeletal motion and  no            swelling,  heat, or  redness, although  claimant subjectively            complained of  pain with motion  and palpation.   Dr. Brummer            concluded   that   claimant  suffers   from  a   soft  tissue                                            ____________________            6.  We  note  that  following  his hearing  before  the  ALJ,            claimant submitted a letter to the Appeals Council wherein he            alleged  that Dr.  Ryan concluded  that claimant  has chronic            pain syndrome and fibromyalgia, a condition discussed  infra.                                                                   _____            However, Dr. Ryan's records are not before us.                                         -7-            inflammatory  disease  such as  chronic tendonitis  or, "more            probably  a  fibromyositis  or  fibromyalgia  syndrome" which            often  respond poorly  to  medications.7   He suggested  that            claimant was not  capable of  work and advised  him to  avoid            significant lifting,  climbing, or repetitive motions.  Based            on  Dr.  Brummer's  evaluation,   in  January  1989  the  MRC            determined   that  claimant   was  eligible   for  vocational            rehabilitation   services   as    a   severely    handicapped            individual.8     Claimant   also  began   weekly  acupuncture            treatments   with   Jonathan   Klate,   Ph.D.,   a   licensed            acupuncturist.     Dr.  Klate  continued  to  treat  claimant            throughout the  time his  claim was  pending and  submitted a                                            ____________________            7.  Fibromyalgia is  pain  in the  fibrous tissues,  muscles,            tendons,  ligaments,  and  other  white  connective  tissues,            frequently  affecting  the  low  back,  neck,  shoulders  and            thighs.  See The  Merck Manual (16th ed. 1992),  pp. 1369-70.                     ___ _________________            As Dr.  Brummer's report  suggests, the term  fibromyalgia is            often used interchangeably with fibromyositis, or fibrositis.            See Lisa v. Dept. of Health and Human Services, 940 F.2d  40,            ___ ____    __________________________________            43  (2nd Cir. 1991).  This condition has only been recognized            over   the   last   several   years.     It   causes   severe            musculoskeletal  pain, stiffness  and  fatigue due  to  sleep            disturbances, although physical  examinations will  generally            be  normal. See  Preston  v. Secretary  of  Health and  Human                        ___  _______     ________________________________            Services, 854 F.2d  815, 818  (6th Cir. 1988).   The  disease            ________            cannot be confirmed by objective tests, rather, the diagnosis            is made  by exclusion  and the elicitation  of tenderness  at            certain "'focal tender points.'" Id.  Fibrositis patients may                                             ___            also have psychological disorders; the disease afflicts women            significantly more often than men. Id.                                                ___            8.  It  appears  that the  MRC  simply  assisted claimant  in            securing computer  software and  components that  would allow            him to pursue employment without exacerbating his condition.                                          -8-            report   to  the   SSA   which  opined   that  claimant   was            significantly disabled.                   Claimant  resigned  from  his  position  as  a telephone            fundraiser  around  June  29,  1989,  claiming  that  he  was            physically unable to meet the job's requirements due to wrist            and hand pain aggravated  by warmer weather.  He  applied for            SSI  benefits on  the same  day.   Claimant  was subsequently            examined by two internists  on behalf of the SSA,  Dr. Enrico            Petrillo and  Dr. Dwight Robinson.   Dr. Petrillo  reported a            normal  physical   exam  and  concluded   that  claimant  had            musculoskeletal symptoms  of burning and pain  in the muscles            and  tendons  bilaterally.    He did  not  assess  claimant's            residual functional capacity (RFC).   Dr. Robinson found that            claimant  exhibited 20  degree flexion  contractures of  both            elbows,  but  that   claimant's  joint  exam  was   otherwise            unremarkable.    In particular  he  noted that  there  was no            swelling or tenderness and no  muscle atrophy.  Dr.  Robinson            indicated that claimant might  have a variant of fibromyalgia            and that his  functional ability was  clearly limited by  his            symptoms,  although he  did not  assess  claimant's RFC.   He            advised  claimant  to  pursue  gradual  muscle  strengthening            exercises and possibly to try an antidepressant.9                                            ____________________            9.  Dr. Robinson also noted that claimant might have an early            form of  scleroderma, a  disease that would  not account  for            claimant's symptoms.                                          -9-                 Based on the  aforementioned medical  evidence, the  SSA            secured an  assessment of claimant's exertional  RFC from Dr.            Harvey Wald, a non-examining  consultant.  Dr. Wald concluded            that claimant  was limited to light work.   Consequently, the            SSA denied  claimant's initial application and claimant filed            a request  for reconsideration.   Claimant  consulted another            rheumatologist,  Dr.  Robert  Gray,   on  December  7,  1989.            Physical exam again disclosed that both elbows showed a 20-30            degree loss of full  extension, but flexion was full.   There            was  no  synovial  (joint)  swelling,  no  fibrositic trigger            points, and no evidence  of muscle atrophy or weakness.   Dr.            Gray concluded that claimant suffered from arthralgias (joint            pain) and myalgias (muscle pain) of undetermined etiology and            that his symptoms  were atypical of fibrositis  syndrome.  On            December  13,  1989,  claimant  was examined  by  Dr.  Jerome            Siegel,   another  consulting   internist.     Physical  exam            disclosed  that claimant  appeared  well, had  no history  of            sleep disturbance, and again exhibited a full range of motion            with  no synovial  thickening.   No trigger  point tenderness            areas  were palpated.   Shoulder  x-rays  and lab  tests were            normal.   Dr. Siegel  made a  differential diagnosis  of pain            disorder involving the joints with questionable fibromyalgia,            somatization  disorder, and chronic  pain disorder.   Neither            Dr. Gray nor Dr. Siegel assessed claimant's RFC.                                         -10-                 Finally, on January 24, 1990, claimant was evaluated for            the SSA by  Dr. Sanford Bloomberg, a psychiatrist.   Claimant            reported  that he  suffered from  a "painful  condition" that            affected  essentially all  of his  major joints  although his            complaints were  "completely subjective."   Although claimant            reported that his activities had become extremely constricted            as a result, he was then taking graduate courses and applying            to  graduate school at  the University of  Massachusetts.  He            was also the editor of his church newsletter and participated            in  a young adult group.   Despite being  able to shop, cook,            and  participate in  the aforementioned  activities, claimant            professed  that he was in  constant pain.   He denied trouble            sleeping.  Dr. Bloomberg stated that, "[t]he only diagnosis I            would  make would  be  a somatoform  pain  disorder, with  no            related organic pathology, which  so far, can be specifically            identified to  document  the diagnosis  that some  physicians            have  made  for  him,   fibrocytis  or  fibromyalgia."    Dr.            Bloomberg noted  that  where  one  local  expert  (presumably            referring to Dr.  Gray) had concluded  that claimant did  not            have fibrositis,  claimant's complaints of pain  were grossly            in   excess  of  what  one   would  expect  if   he  had  any            pathology.10   While Dr. Bloomberg did  not assess claimant's                                            ____________________            10.  Dr.  Bloomberg also  observed  that  claimant's  alleged            incapacity was  not objectively observable and  that claimant            presented as  "vigorous, full of energy,  walking and sitting            down and rising ... with no difficulty apparent."                                         -11-            RFC,  the SSA secured a mental RFC evaluation from Dr. Joseph            Lichtman,  a  psychologist.    Dr.  Lichtman  concluded  that            claimant suffered  from a somatization  disorder which  would            often result in  deficiencies of persistence,  concentration,            and pace resulting in a failure to complete tasks in a timely            manner.   However,  he  found that  claimant's activities  of            daily living and ability  to maintain social functioning were            only slightly limited, and  that claimant never suffered from            episodes of deterioration or  decompensation in work or work-            like settings.                   The ALJ credited  Dr. Lichtman's functional  findings in            concluding that  claimant was not disabled.   He specifically            found that  claimant does  not have a  medically determinable            physical  impairment that  could  reasonably  be expected  to            result  in  the  degree  of  pain  and  functional loss  that            claimant  has alleged.    The ALJ  then evaluated  claimant's            subjective  pain  complaints  in  accordance  with  Avery  v.                                                                _____            Secretary  of Health  and Human  Services, 797 F.2d  19, (1st            _________________________________________            Cir.   1986),  and   concluded  that   claimant's  subjective            allegations  were   not  credible   in  view   of  claimant's            activities as a graduate student  and church member, the fact            that there was no physical basis for claimant's pain, and the            fact that claimant  took no  medications at the  time of  the                                         -12-            hearing.11      The  ALJ   found  that   claimant's  residual            functional   capacity   was   not  significantly   restricted            exertionally and that his somatoform disorder only  prevented            him from  performing his past job as  a telephone fundraiser.            After the  hearing claimant  submitted additional letters  to            the  Appeals Council where he  recounted that he  had begun a            course  of treatment  with amitriptyline,  an anti-depressant            used  to  treat fibromyalgia.  The  Appeals  Council declined            review, thus rendering the ALJ's decision final.                                         II.                 We  are bound to affirm the Secretary if his decision is            supported by substantial  evidence on the record  as a whole.            See,  e.g.,  Rodriguez  v.  Secretary  of  Health  and  Human            ___   ____   _________      _________________________________            Services,  647 F.2d 218, 222  (1st Cir. 1981).   Any claimant            ________            seeking  disability  benefits  bears  the initial  burden  of            proving that  his condition prevents him  from performing his            former  type of   work, not just  that he cannot  return to a                    ____            particular job. See Gray  v. Heckler, 760 F.2d 369,  372 (1st                            ___ ____     _______            Cir. 1985).  And, as the Secretary's regulations provide that            even  part  time  work  may  constitute  substantial  gainful            activity, the fact that all of claimant's past positions were            part time jobs does not require a finding of disability.  See                                                                      ___            Davis v.  Secretary of  Health and  Human Services,  915 F.2d            _____     ________________________________________                                            ____________________            11.  Claimant  had  been  accepted  to  graduate  school  and            expected  to attend classes for two, eight-hour days per week            at the time of the hearing.                                         -13-            186, 189 (6th Cir.  1990); 20 C.F.R.  416.972(a)(work  may be            substantial even if it is done on a part time-basis).                  On appeal, claimant argues that the evidence establishes            that  he  meets  the  Somatoform  Disorder  Listing  ( 12.07)            because  he   has  repeatedly   suffered  from  episodes   of            deterioration or decompensation at  work, as evidenced by the            fact that he has withdrawn from several of his past jobs  due            to  wrist tendonitis.   Claimant also  contends that  the ALJ            should  have given more weight  to the reports  of his health            care providers  (e.g., Drs. Schiffman,  Brummer, and  Klate),            particularly  where  the  doctors  who   assessed  claimant's            residual  functional  capacity  did  not  even  examine  him.            Claimant  emphasizes that  he  is  unable  to use  his  upper            extremities and, since most  jobs entail this requirement, he            is  unable to perform his past jobs and any other substantial            gainful activity.    Each of these arguments must  fail given            our limited  standard of review and  the conflicting evidence            in the record.                  First,  while  it  is  true  that the  ALJ  found  that            claimant satisfied three of the paragraph A criteria required            to meet the Somatoform Disorder Listing, see n. 1, supra, the                                                     ___       _____            record amply supports the ALJ's conclusion that claimant does            not suffer  from the  degree of  functional loss  required to            meet  the  paragraph B  criteria of   12.07.   Thus,  even if            claimant resigned from  his job as a telephone fundraiser due                                         -14-            to  increased  pain, this  alone does  not establish  that he            experienced the  repeated  episodes of  deterioration in  the            work place required to  satisfy  12.07.  Moreover, claimant's            testimony  and  contact  with  the  SSA  supports  the  ALJ's            conclusion  that his  activities of  daily living  and social            functioning  were  not   significantly  impaired.    Claimant            resides with  seven  people,  is able  to  do  some  cooking,            cleaning, writing, and driving, in  addition to participating            in church activities and  attending graduate school while his            SSI  claim was pending.   Even with the restrictions claimant            has  identified, these activities  do not suggest  a level of            impairment consistent  with total disability.   Thus, the ALJ            did  not err in concluding that claimant failed to prove that            he satisfies the Somatoform Disorder Listing.                 With  respect  to claimant's  second  contention,  it is            well-established in this circuit that a  treating physician's            opinion may  be  rejected by  the Secretary,  who may  accord            greater weight to  his own  experts.  See,  e.g., Keating  v.                                                  ___   ____  _______            Secretary of Health  and Human  Services, 848  F.2d 271,  272            ________________________________________            (1st  Cir.  1988)(per  curiam); Barrientos  v.  Secretary  of                                            __________      _____________            Health  and  Human  Services,  820  F.2d  1,  2-3  (1st  Cir.            ____________________________            1987)(per curiam);  Sitar v. Schweiker, 671 F.2d  19, 21 (1st                                _____    _________            Cir. 1982)(per curiam).  In concluding that claimant suffered            only  from a  somatoform  disorder and  not  from a  physical            impairment (e.g. fibromyalgia), the ALJ credited the opinions                                         -15-            of  Drs.  Siegel and  Bloomberg, both  of whom  suggested the            diagnosis   of  somatoform  disorder,   and  the  opinion  of            claimant's  own rheumatologist,  Dr.  Gray, who  stated  that            claimant's  symptoms  were   inconsistent  with   fibrositis,            particularly noting the absence  of trigger point  tenderness            and complaints of  poor sleep.   There  was no  error in  the            ALJ's  decision not to place  more weight on  the opinions of            claimant's other health care providers.    The ALJ  correctly            observed that the disability opinion expressed  by claimant's            acupuncturist was not  entitled to the  weight that might  be            accorded a  physician since the regulations  do not recognize            acupuncturists as acceptable medical  sources.  See 20 C.F.R.                                                            ___             416.972(a)(acceptable   medical  sources   include  licensed            physicians,  osteopaths,   psychologists,  optometrists,  and            record  custodians).    To   be  sure,  the  record  arguably            supported a finding that claimant does suffer from a physical            impairment   -  fibromyalgia   -     that   does  limit   him            exertionally.   But since conflicts  in the evidence  are for            the  Secretary  to  resolve,   see,  e.g.,  Burgos  Lopez  v.                                           ___   ____   _____________            Secretary  of Health and Human Services, 747 F.2d 37, 40 (1st            _______________________________________            Cir.  1984), we  cannot second  guess the  ALJ's decision  to            credit the evidence which undermined this diagnosis.                 The  ALJ  rejected  claimant's  contention  that  he  is            prevented  from  working  because  he cannot  use  his  upper            extremities,  finding that  his complaints of  disabling pain                                         -16-            and functional loss were not credible.   An ALJ's credibility            determinations are owed "considerable deference."   Dupuis v.                                                                ______            Secretary of  Health and  Human Services,  869 F.2d  622, 623            ________________________________________            (1st  Cir. 1989).      Nevertheless,  we question  the  ALJ's            conclusion  that   claimant   suffers  from   no   exertional                                                          __            limitations.     In   the  first   place,  this   finding  is            contradicted by Dr. Wald, the SSA's consultant who found that            claimant was exertionally limited to  light work.  And  given            the  significant  number  of  physicians  who  reported  that            claimant suffered at least  some loss of function due  to his            subjective  symptoms, we question whether the ALJ as a layman            was  qualified   to  conclude   that  claimant  suffered   no            exertional  limitations  even  if   he  found  the  cause  of            claimant's  condition  to  be  a mental  impairment  (i.e,  a            somatoform  disorder)  as opposed  to a  physical impairment.            See  Walston  v.   Gardner,  381  F.2d  580,  585  (6th  Cir.            ___  _______       _______            1967)(pain may  be  disabling even  if  partly caused  by  an            emotional  problem).    As a  general  rule,  an  ALJ is  not            qualified to assess residual functional capacity on the basis            of  bare  medical findings.    See,  e.g.,  Berrios Lopez  v.                                           ___   ____   _____________            Secretary of Health and Human  Services, 951 F.2d 427, 430-31            _______________________________________            (1st Cir.  1991).   However,  the record  supports the  ALJ's            implicit  conclusion that claimant  retained the capacity for            light  work.   In  particular, we  note  that the  duties  of            claimant's past salesperson  job fall within  this exertional                                         -17-            category,  and that  "the type  of work  involved in  a sales            clerk job would not necessarily involve continual use of both            arms  and hands  for  long periods  of time  ...."   Gray  v.                                                                 ____            Heckler, 760 F.2d at 374.  The same can be said of claimant's            _______            past   job  as   a  psychiatric   aide.   Accordingly,  where            substantial  evidence  supports  the  ALJ's  conclusion  that            claimant can do at least some of his past jobs, the  judgment            of the district court is affirmed.                                          ________                                         -18-