USA v. MULKERN

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
)
v. 	) 2:17-cr-00147-JDL-1
)
SEAN MULKERN, 	)
)
Defendant. 	)
ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION
Defendant Sean Mulkern was charged by indictment on October 18, 2017 with
possession of a controlled substance with intent to distribute in violation of 21
U.S.C.A. § 841(a)(1), (b)(1)(B) (West 2021), possession of a firearm in furtherance of
a drug trafficking crime in violation of 18 U.S.C.A. § 924(c)(1)(A)(i) (West 2021), and
as a felon in possession of a firearm in violation of 18 U.S.C.A. 922(g)(1), 924(a), (e)
(West 2021) (ECF No. 1). 	Mulkern sought to suppress all of the evidence and
statements obtained by the police as a result of a stop of his vehicle and search of his
person and vehicle, and all of the evidence obtained thereafter following the issuance
of a search warrant (ECF No. 31, 33). 	Following a hearing, Mulkern’s motion to
suppress was granted in part and denied in part (ECF No. 82).
Mulkern conditionally pleaded guilty to the possession with intent to distribute
charge and the felon in possession charge on March 14, 2019, and he is awaiting
sentencing. 	He now brings the instant motion, urging this Court to reconsider its
previous ruling denying in part his motion to suppress (ECF No. 129). 	I held a
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hearing on the motion on February 9, 2021. 	For the reasons that follow, I deny the
motion for reconsideration.
I. BACKGROUND
A full recitation of the facts is available in my Order on Mulkern’s motion to
suppress (ECF No. 82). I summarize the key facts here.
A. 	The Timberline Country Store Incident
On May 24, 2017, two Buxton police officers—Officers Jessica Ramsay and
Warren Day—responded to a dispatch call regarding a reported incident involving
road rage and a threat with a gun at the Timberline Country Store in Buxton. 	The
911 dispatcher relayed a report that the driver of a white Corvette with red rims had
pulled a gun on a man at the store. The driver was described as a thin male wearing
a white shirt and baseball cap. The dispatcher also provided the Maine motor vehicle
registration number for the Corvette, which had left the scene. 	The dispatcher
advised, however, that the Maine registration number provided, “2512 VW,” was
assigned to a black Lexus, and not a white Corvette.
While en route to the store, Officer Day spoke by phone to the individual who
made the 911 call, and was told that a man in a white Corvette had pulled out a gun
and threatened him with it. 	At the store, Officer Ramsay viewed the store’s
surveillance video, which showed that following an initial verbal altercation with
three men, the white male driver of the white Corvette—which had red stripes
running the length of the vehicle and red rims—reached for an unidentifiable object
and held it at the center of his chest. The video showed that upon seeing this object,
the behavior of the three men became elevated and they started yelling and pointing.
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Due to the quality of the video, however, Officer Ramsay could not confirm that the
object was a gun. Officer Ramsay also spoke to a store employee who had witnessed
the incident. The employee described seeing a skinny man around fifty years of age
operating a white car with two red stripes get into an altercation with three men.
After the investigation at the store, Office Ramsay issued a “be-on-the-lookout”
bulletin to the statewide police broadcast, which read:
*** Caution Officer Safety ***
On today[’]s date Buxton Police Department took a report of a male in a
white Corvette with red rims [who] was in a[n] altercation at Timberline
Country Store 222 Narragansett Trail. The operator[,] a male in his 40’s
white shirt and ball cap, pulled out a hand gun and showed it to the
victim. The vehicle was last seen headed toward Gorham. If located stop
and identify the driver.
Thank you for any assistance.
B. 	The Traffic Stop, Search, and Arrest
On May 25, 2017, at approximately 2:15 p.m., Sgt. Timothy Morrell of the
Westbrook Police Department, who had read the bulletin, spotted a white Corvette
with red rims in Westbrook. The Corvette matched the description from the Bulletin,
and it bore Maine registration 2513 VW. Sgt. Morrell ran a search of the Corvette’s
registration number in the Bureau of Motor Vehicles (“BMV”) database, which
identified Sean Mulkern as the registered owner. 	Sgt. Morrell observed that the
driver was a white man in his forties wearing a baseball cap. He then contacted the
Buxton Police Department and spoke with Chief Troy Cline, who confirmed that the
Corvette’s registration was one digit off from the registration number 2512 VW that
had been reported the previous day. This led Sgt. Morrell to believe that the Corvette
was the same vehicle identified in the bulletin.
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Sgt. Morrell continued his surveillance of the Corvette, which was now parked
in the driveway of a residence, and he also ran a criminal background check on
Mulkern, which revealed that he was a convicted felon with a history of drug-related
charges. 	After observing Mulkern standing outside the Corvette, Sgt. Morrell
positively identified Mulkern based on a photograph of Mulkern in the Bureau of
Motor Vehicles database.
Sgt. Morrell was joined by two additional Westbrook police officers to assist
with surveillance. 	After observing Mulkern getting into the Corvette, beginning to
back out of the driveway, and then abruptly changing the direction of his car so as to
travel away from the police officers, Sgt. Morrell intuited that Mulkern had spotted
the police cruiser. 	At that point, Sgt. Morrell and another officer approached the
Corvette, ordered Mulkern out of the vehicle, and directed him to place his hands on
the rear of the car.
In an ensuing pat down search, one of the officers felt an object which he
recognized to be a hypodermic needle in Mulkern’s jacket pocket. 	When the officer
asked if the object was a needle, Mulkern replied “no” and then reached for his pocket.
At that point, the officer placed Mulkern in handcuffs and removed the needle. In
response to further questions, Mulkern stated that the needle was not his and was
unused.
The 	officer 	believed 	that 	the 	needle 	was 	drug-related 	contraband 	and
continued searching Mulkern. 	He felt a package of cigarettes in Mulkern’s jacket
pocket, which he removed. 	The package contained what appeared to be a crystal of
crack cocaine. 	Mulkern volunteered that “[t]his is mine . . . the needle isn’t.” 	The
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officer then asked Mulkern why he was fidgety, and Mulkern replied that he didn’t
want to get in trouble for a “little piece of crack.”
The officer then conducted a search of the Corvette, and discovered several
baggies of what appeared to be crack cocaine and a large amount of cash. 	Mulkern
stated, unprompted, “[t]here you go, you got it right there,” or words to that effect.
An officer then read Mulkern Miranda warnings, and Mulkern was placed in a police
cruiser. A .9mm handgun was also ultimately found in the Corvette.
During the course of the vehicle search, Officer Ramsay and Officer Day
arrived at the scene to interview Mulkern about the Timberline incident. Officer Day
also read Miranda warnings to Mulkern, who responded that he was not in Buxton
the prior day and was not going to answer any questions.
Later that day, an agent of the Maine Drug Enforcement Agency obtained a
warrant to search a Winnebago registered to Mulkern. 	In the Winnebago, agents
found additional drugs, drug paraphernalia, and firearms. The warrant affidavit was
based in part on the evidence and statements obtained during Mulkern’s stop and
arrest on May 25, along with a proffer statement made by an informant eight days
earlier and a statement given by an occupant of the residence where Mulkern was
parked immediately prior to the stop and search.
C. 	The Original Motion to Suppress and Order
In his motion to suppress, Mulkern argued that (1) the traffic stop of his vehicle
was an unreasonable search and seizure under the Fourth Amendment, and all of the
evidence discovered during and as a result of the search must be suppressed; (2) even
if the traffic stop was lawful, the search of his person was not, and all of the evidence
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discovered during that search, as well as the evidence discovered pursuant to the
search warrant, must be suppressed; and (3) any statements he made after being
handcuffed and before he was read his Miranda rights must be suppressed because
he was in custody.
I determined that the stop of Mulkern’s car and the searches that followed were
supported by probable cause to arrest Mulkern for the crime of having been a felon
in possession of a firearm during the Timberline incident on May 24, 2017. 	I noted
that the collective information available to the police gave them a reasonable basis to
believe that: (1) the operator of the Corvette was in possession of a firearm at the
Timberline on May 24, 2017, (2) Mulkern was that person who had been operating
the Corvette at the Timberline, and (3) Mulkern was a convicted felon. I further noted
that because there was probable cause to arrest Mulkern for being a felon in
possession of a firearm, the officers had sufficient cause to conduct searches of both
Mulkern’s person and his vehicle. I noted that there was no reason under the Fourth
Amendment to suppress Mulkern’s unsolicited statements made in reaction to those
searches, nor was there any reason to invalidate the warrant, which was based on
evidence obtained as a result of those searches. 	However, I did suppress all of
Mulkern’s non-spontaneous statements made in response to, or prompted by, the
questioning that took place after the crystal of cocaine was found on Mulkern’s body
and before he was read a Miranda warning, as I found that those statements were
obtained in violation of the Fifth Amendment.
Mulkern now asks that I reconsider my order denying in part his motion to
suppress. He cites what he characterizes as newly discovered evidence in the form of
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a portion of the dashcam video footage of the search of the Corvette—which was
included in 	the 	video 	evidence 	received and admitted during 	the 	suppression
hearing—showing one of the officers removing a license plate reading “6163 PV” from
the trunk area of the vehicle. He also submits several documents associated with his
registration of the Corvette at the Scarborough Branch of the BMV on May 24, 2017,1
and two records of inquiries made by the Buxton Police Department. 	One of these
records shows a query by a Buxton Police dispatcher at 2:24 p.m. on May 25, 2017
regarding license plate number 2513 VW which indicates that it belongs to the white
1989 Corvette registered to Mulkern. The other shows a query by Officer Ramsay at
6:37 p.m. on May 25, 2017 regarding license plate number 2512 VW, which indicates
that it belongs to a black 2015 Lexus registered to another individual. 	The
Government does not object to the Court’s receipt and consideration of these
documents, and it has submitted a State of Maine Vehicle Registration document
showing that the 2513 VW license plate was registered to Mulkern as early as
February 	24, 	2017, 	as 	well 	as 	a 	document 	generated 	by 	the 	Buxton 	Police
Department’s Court Officer/Crime Analyst on the morning of the hearing which
indicates that the 2513 VW plate was run by Buxton Police on May 24, 2017 at 3:54
p.m. 	Mulkern does not object to the Court’s receipt and consideration of the
Government’s additional exhibits.
1 These include a bill of sale for the Corvette dated May 23, 2017; a receipt from the Scarborough
Branch of the BMV indicating that he paid an $8.00 transfer fee on May 24, 2017 at 4:45 p.m.; a vehicle
registration document for a white 1989 Corvette with the registration number 2513 VW titled “New-
Registration Transfer”; correspondence from the BMV dated April 30, 2020 regarding Mulkern’s
transactions on May 24, 2017; correspondence from the BMV dated July 17, 2020 regarding Mulkern’s
transactions on May 24, 2017; and a temporary insurance card dated May 24, 2017.
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II. LEGAL STANDARD
“[M]otions for reconsideration in criminal cases are not specifically authorized
either by statute or by rule.” 	United States v. Ortiz, 741 F.3d 288, 292 n.2 (1st Cir.
2014). 	However, the First Circuit has applied standards derived from the Federal
Rules of Civil Procedure in analyzing motions for reconsideration submitted in
criminal cases. See United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009) (considering
a motion for reconsideration of a motion to suppress); see also United States v. Peña-
Fernández, 394 F. Supp. 3d 205, 207 (D.P.R. 2019).
“[M]otions for reconsideration are appropriate only in a limited number of
circumstances: if the moving party presents newly discovered evidence, if there has
been an intervening change in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was clearly unjust.” Allen,
573 F.3d at 53 (citing Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 7 n.2 (1st Cir.
2005)). 	“A court will deny a motion for reconsideration based on the ‘new evidence’
exception if that evidence ‘in the exercise of due diligence[] could have been presented
earlier.’” Id. (quoting Emmanuel v. Int'l Bhd. of Teamsters, Local Union No. 25, 426
F.3d 416, 422 (1st Cir. 2005)). Additionally, a showing that the original decision was
clearly unjust is “difficult to achieve” and “requires a definite and firm conviction that
a prior ruling on a material matter is unreasonable or obviously wrong.” 	Ellis v.
United States, 313 F.3d 636, 648 (1st Cir. 2002).
“Motions for reconsideration are not to be used as ‘a vehicle for a party to undo
its own procedural failures [or] allow a party to advance arguments that could and
should have been presented to the district court prior to judgment.’” Allen, 573 F.3d
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at 53 (alteration in original) (quoting Iverson v. City of Bos., 452 F.3d 94, 104 (1st Cir.
2006)).
III. DISCUSSION
I address Mulkern’s reconsideration motion by first deciding whether the
evidence submitted is newly discovered, and then considering whether the proffered
evidence leads to factual findings that are different than those set forth in my
December 7, 2018 Order on Mulkern’s Motion to Suppress and that would render that
decision clearly unjust.
A. 	Newly Discovered Evidence
The evidence that Mulkern proffers as “newly discovered” consists of dashcam
footage from the May 25, 2017 search of the Corvette, along with documents related
to Mulkern’s purchase of the Corvette on May 23, 2017 and his registration of the
Corvette on May 24, 2017, and records of two license plate inquiries made by the
Buxton Police Department.
Mulkern contends that the portion of the dashcam footage beginning at minute
23:14 of the video, which depicts an officer removing a license plate reading “6163
PV” from the area behind the front passenger seat of the Corvette, was so difficult to
discover that “it was as if this evidence did not exist.” 	ECF No. 129 at 7. 	He notes
that “discovery of th[e] evidence was no easy task” as it required reviewing multiple
hours’ worth of video footage, and that the 6163 PV license plate was not mentioned
in any police reports or other discovery materials. Id. Accordingly, he contends that
this evidence is “newly discovered.” Id.
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Mulkern acknowledges that the dashcam video was provided to him by the
Government and that the entire video was admitted as evidence at the hearing on
the motion to suppress. 	While the few seconds in the video that depict the officer
removing the 6163 PV license plate from the Corvette are no doubt fleeting, the
officer’s actions and the license plate itself are plainly visible. 	This portion of the
video falls squarely in the category of evidence that, “in the exercise of due diligence[]
could have been presented earlier.” Allen, 573 F.3d at 53. 	Indeed, the entire video
actually was presented earlier at the hearing on the motion to suppress, although
neither party focused their arguments on the few seconds now at issue. 	Regardless
of whether the portion of the video depicting the removal of the license plate is
characterized as evidence which was actually presented earlier or evidence which in
the exercise of due diligence could have been presented earlier, the evidence is not
newly discovered.
The same conclusion applies to the various motor vehicle documents related to
Mulkern’s purchase and registration of the Corvette. 	Mulkern notes that the
evidence relating to his registration of the Corvette was not within his “custody and
control” at the time he filed his motion to suppress, and that he had no need to obtain
these documents until he discovered the dashcam video showing the retrieval of the
6163 PV license plate. 	ECF No. 137 at 3. 	Again, however, Mulkern presents no
plausible reason why he could not have completed the investigative steps of watching
the dashcam video, discovering the allegedly important footage of the 6163 PV license
plate, and requesting the relevant documents from the BMV prior to the suppression
hearing. Mulkern does not allege any delay or reluctance on the part of the BMV to
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furnish the records, and he was clearly aware of their existence since it was his
actions that led to the creation of the documents. 	Again, this evidence could have
been obtained earlier, and therefore it is not newly discovered.
As to the records of the two license plate inquiries made by the Buxton Police
Department—which Mulkern filed on the morning of the hearing on the motion for
reconsideration, 	separately 	from 	the 	motion 	itself—Mulkern 	has 	provided 	no
explanation as to where or how he obtained these documents. At the hearing on the
motion for reconsideration, the Government contended that these records were
available to Mulkern at the time of the suppression hearing, which Mulkern did not
dispute. Thus, this evidence is also not newly discovered.
B. 	If Considered, the Evidence Does Not Affect the Court’s Factual
Finding that Mulkern was the Operator of the White Corvette on May
24, 2017, and Does Not Render the Order Denying the Motion to
Suppress Clearly Unjust
Mulkern argues that 	the newly 	proffered evidence 	supports 	his 	motion to
suppress in three ways: first, by establishing an alibi defense by showing that he was
at the BMV at the time of the Timberline incident, second, by showing that the 2513
VW license plate could not have been on the Corvette at the time of the incident at
the Timberline Country Store, and third, by showing that the police did not know
what license plate belonged to the Corvette involved in the Timberline incident on
May 24, 2017. 	According to Mulkern, these final two points indicate that the officers
lacked probable cause to arrest Mulkern at the time of the stop on May 25 for having
been a felon in possession of a firearm on May 24. 	Ultimately, Mulkern appears to
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argue that his newly proffered evidence renders my December 7, 2018 Order on the
Motion to Suppress clearly unjust. His argument is unpersuasive.
Mulkern correctly notes that the registration documents from the BMV
indicate that he registered the Corvette at the BMV’s Scarborough branch on May
24, 2017 at 4:45 p.m. 	The correspondence from the BMV further indicates that
Mulkern may have arrived at the BMV at 4:24 p.m. However, Mulkern’s contention
that this was “the very day and time he was allegedly seen driving a Corvette and
getting into an encounter in Buxton” is contrary to the evidence. ECF No. 129 at 6-
7.
At the suppression hearing, Officer Ramsay testified that she was first alerted
to the incident at the Timberland Country Store at 3:58 p.m., and that the 911 call
initially came in at 3:52 p.m.2 	Citing MapQuest, the Government has posited that
the drive from the Timberline Country Store to the Scarborough Branch of the BMV
takes approximately nineteen minutes. 	Mulkern did not dispute this contention in
his reply or at the hearing.3 While Mulkern argues that it is unlikely that the same
individual involved in the Timberline incident could have been at the BMV by 4:24
p.m., in reality more than thirty minutes passed between the 911 call and the time
2 In its opposition, the Government notes that Officer Ramsay’s report indicates that she was notified
of the incident at 2:58 p.m. However, at the suppression hearing, Officer Ramsay testified that she
was actually notified at 3:58 p.m.
3 	Federal Rule of Evidence 201(a)(2) permits courts to take judicial notice of a fact that “can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
See also Rindfleisch v. Gentiva Health Sys., Inc., 752 F. Supp. 2d 246, 259 n.13 (E.D.N.Y.
2010) (explaining that courts “commonly use internet mapping tools to take judicial notice of distance
and geography”).
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the BMV estimates that Mulkern arrived to register his vehicle—more than enough
time for Mulkern to drive from the Timberline Country Store to the BMV.
Mulkern’s contention that the 2513 VW license plate could not have been on
the Corvette at the time of the Timberline incident is no more persuasive. Mulkern
argues in his motion for reconsideration that the documents from the BMV reveal
that he was not driving with the 2513 VW license plate on the Corvette on May 24,
2017. However, as the Government notes, the BMV documents indicate that Mulkern
simply transferred his license plate number at the BMV. In keeping with Maine law,
a person “who transfers the ownership or discontinues the use of a registered motor
vehicle” and who “applies for registration of another motor vehicle” may “use the
same number plates on payment of a transfer fee of $8.” 29-A M.R.S.A. § 502(1) (West
2021).
Based on the $8.00 fee that Mulkern paid to the BMV and the fact that the
vehicle registration document is titled “New-Registration Transfer,” ECF No. 129-1
at 5, it appears highly likely that Mulkern possessed the 2513 VW license plate prior
to when he registered the Corvette on May 24, 2017. 	This fact is made even more
certain by the document submitted by the Government at ECF No. 132-1, which
establishes that Mulkern had been assigned the 2513 VW license plate prior to May
24, 2017. The fact that police officers discovered another license plate—6163 PV—in
the Corvette behind the front passenger seat as documented in the dashcam video
does not detract from this finding. 	In short, Mulkern offers no evidence to indicate
that the 2513 VW license plate was not on the Corvette at the time of the Timberline
incident.
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Finally, Mulkern’s argument that the two license plate queries reveal that the
police did not know what license plate was on the Corvette involved in the Timberline
incident on May 24, 2017 is not consistent with the evidence presented at the
suppression hearing. The first query as to the Corvette on May 25, 2017 at 2:24 p.m.
is entirely consistent with the evidence that the Corvette had been spotted by Sgt.
Morrell roughly ten minutes earlier, and that Sgt. Morrell had contacted the Buxton
Police Department to confirm that the Corvette’s registration was one digit off from
the number that had been reported the prior day. 	The second query as to the 2512
VW plate which came roughly three hours after Mulkern’s arrest also does not
contradict the factual findings that I made in my December 7, 2018 Order. The police
may have looked up the 2512 VW plate for any number of reasons which are
consistent with my initial factual findings.
Accordingly, the new evidence proffered by Mulkern, even if admitted, has no
effect on the findings of fact contained in my Order dated December 7, 2018, nor does
it change the outcome of the probable cause analysis. 	Accordingly, I conclude that
that decision was just and does not merit reconsideration.
IV. CONCLUSION
For the reasons stated above, Mulkern’s Motion for Reconsideration (ECF No.
129) is DENIED.
SO ORDERED.
Dated: April 5, 2021
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
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