-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1779
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD ALSTON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Before
Boudin, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Lois M. Lewis, by Appointment of the Court, for appellant. _____________
Paul G. Levenson, Assistant United States Attorney, with whom _________________
Donald K. Stern, United States Attorney, was on brief for the United _______________
States.
____________________
May 5, 1997
____________________
BOUDIN, Circuit Judge. In the district court, Richard ______________
Alston was found guilty by a jury of being a convicted felon
in possession of a firearm in violation of 18 U.S.C.
922(g)(1). On this well-argued appeal, Alston makes a number
of claims of error. Most are readily answered, but one
issue--what happens when the government alters evidence for
arguably legitimate reasons but to the defendant's
disadvantage--requires more extensive discussion.
The background facts are not in dispute. At about 10
p.m. on November 13, 1992, two Boston police officers
received a tip from a confidential informant that a man near
5 Fayston Street in Dorchester was carrying a gun. The
informant advised that the man was black, and was dressed in
jeans, a tan jacket and black baseball cap. The officers
parked their unmarked car across the street a few doors away
and saw Alston emerge from 5 Fayston Street wearing the
clothing described by the informant.
In plainclothes but with police badges around their
necks, the officers left their car and approached Alston.
According to the officers, Alston moved his left hand in the
direction of his coat pocket (he denies this), and one of the
officers grabbed Alston's arm and felt the outside of the
pocket. Realizing that there was a gun in the pocket, the
officer removed it and arrested Alston.
-2- -2-
The gun seized from Alston was later identified as a
Colt Model 1908 .25-caliber, semi-automatic pistol. When
seized, the weapon was rusted and pitted, and its slide was
stuck. It contained no magazine, and Alston had no
ammunition. The gun's grip was wrapped in electrical tape.
It is the government's later alteration of this weapon that
gives rise to the main issue in this case.
Alston was first charged under Massachusetts law with
possessing a firearm without a license and possessing a
firearm with a defaced serial number. M.G.L. ch. 269,
10(a), 11C. Shortly thereafter, the state charges were
dismissed because the Boston Police Department's ballistics
unit had determined that the gun was inoperable and therefore
did not meet the Massachusetts definition of a firearm.
M.G.L. ch. 140, 121. The Boston Police then sent the gun
to the U.S. Treasury Department's Bureau of Alcohol, Tobacco
and Firearms ("ATF").
An ATF specialist used WD-40 oil and a rawhide mallet to
free the slide. He also buffed and polished part of the gun
in a vain attempt to determine the serial number. Another
specialist then lubricated, disassembled and cleaned the gun,
checked it for safety, reassembled it and test fired it. It
appears that fruitless attempts were made to see whether
through ballistics marks the weapon could be associated with
any other crime.
-3- -3-
In November 1994, a federal grand jury indicted Alston
under the felon-in-possession statute and also for possessing
a firearm with an obliterated serial number in violation of
18 U.S.C. 922(k). The pertinent federal definition of a
firearm is more expansive than the Massachusetts definition:
It includes "any weapon . . . which . . . is designed . . .
to expel a projectile by the action of an explosive." 18
U.S.C. 921(a)(3). Thereafter, the government dropped the
serial number charge but proceeded on the felon-in-possession
charge.
Alston tried unsuccessfully to suppress the gun as
unlawfully seized, and later objected to its admission at
trial because it had been altered by the government. Neither
effort was successful. The gun, and testimony that it had
been test fired, were provided at trial; the jury was also
told how the gun had been refurbished. The jury convicted
Alston in July 1995 after a short trial.
In June 1996, Alston was sentenced to 188 months in
prison and three years of supervised release pursuant to the
Armed Career Criminal Act. 18 U.S.C. 924(e). That statute
provides for a minimum sentence of 15 years if the defendant
has previously been convicted of three violent felonies.
Alston had prior Massachusetts felony convictions for
manslaughter in 1965, assault and battery with a dangerous
weapon in 1968, and armed robbery in 1975.
-4- -4-
On appeal, Alston's first claim is that the district
court erred in refusing to suppress the gun as the product of
an unconstitutional search and seizure. Alston's initial
motion to suppress, inadequately supported, had been denied
by margin order. See United States v. Lewis, 40 F.3d 1325, ___ ______________ _____
1334-35 (1st Cir. 1994). But thereafter, Alston filed a
motion to reconsider accompanied by an affidavit setting
forth Alston's version of events. (The government had
previously provided affidavits of police officers attesting
to the tip and the reliability of the unidentified informant
based on prior accurate tips.)
Alston's affidavit said in substance that he had been
moving a refrigerator with a friend and had tossed his coat
onto the porch of the house. As he lifted the refrigerator,
something fell out onto the pavement and, in the dark, Alston
threw it onto the porch. When he moved the refrigerator into
the house and returned to the porch, the police approached
him as he was starting to put on his coat, patted him down
and took the firearm from his pocket. Alston's affidavit
admits that the "something" he picked up "turned out" to be
the firearm; he does not say how it got into his coat pocket.
After Alston filed his affidavit, the district court
reconsidered the suppression request but again refused to
suppress. The judge ruled that assuming Alston's version of
events to be accurate, the police still had reasonable
-5- -5-
suspicion based on the informant's information to conduct a
Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968). _____ ___ _____ ____
Reasonable suspicion was established, said the judge, because
the confidential informant had given reliable information in
the past; and before stopping Alston, the police were able to
confirm the informant's description of Alston at the location
given by the informant.
Although review of this appraisal is plenary, United ______
States v. Mendez-De Jesus, 85 F.3d 1, 2 (1st Cir. 1996), the ______ _______________
district court was clearly correct in saying that reasonable
suspicion for a Terry stop was created by such a tip from a _____
previously reliable informant. See Adams v. Williams, 407 ___ _____ ________
U.S. 143, 146-47 (1972); Lewis, 40 F.3d at 1334-35. And _____
whether or not Alston reached for his pocket, the pat-down
search was justified because the police had a reasonable
suspicion that Alston might be armed. See United States v. ___ ______________
Schiavo, 29 F.3d 6, 8-9 (1st Cir. 1994). _______
We turn now to the issue that poses the chief
difficulty, namely, Alston s properly preserved claim that
the altered gun should have been excluded from evidence at
trial. Alston's argument is that the refurbishments rendered
the evidence substantially more prejudicial than probative,
warranting exclusion under Fed. R. Evid. 403; alternatively,
he argues that the government deliberately deprived Alston of
-6- -6-
exculpatory evidence in violation of the Due Process Clause
of the Fifth Amendment.
Alston does not dispute that the gun was at all times a
firearm under the federal statute. His main objection to the
government's alterations to the weapon, although perhaps not
his only objection, is that they tended to undermine his
claim that he lacked scienter. The principal argument made
by Alston's counsel at trial was that Alston had picked up a
rusty piece of metal in the dark and--however it may have
gotten into his pocket--Alston had not been aware that it was
a gun.
It is common ground that the defendant's knowledge that
he possesses a weapon is an element of a crime. And surely
the cosmetic improvements to the weapon--removal of rust,
cleaning of the gun and some restoration of the handle--
tended to make it more readily recognizable as a firearm.
Alston's story might be especially hard to believe if the
jury thought that the object at the time Alston picked it up
was the cleaned-up and repaired weapon received in evidence
at his trial.
Nevertheless, Alston has an uphill case under Rule 403.
The gun was of great relevance to the prosecution; its
possession was a critical element in the crime, and the
failure to offer into evidence the gun allegedly seized from
Alston would have been difficult to explain. As to
-7- -7-
prejudice, nothing prevented Alston from offering evidence,
through the government's own witnesses, that when seized, the
gun had been in completely different shape (rusted, pitted,
and with electric tape around the handle). In fact, the
prosecutor brought out most of this information himself on
direct examination.
The Boston police expert who first examined the gun
testified that the weapon--recognizable as a handgun in its
original state--had been in "a severe rusted condition" and
was "totally brown from rust"; that the slide "would not move
because it was rusted solid"; that parts were missing
including the magazine and the grips around the handle; and
that the handle was wrapped in tape. Then ATF agents
testified as to the cleaning and test firing, which can be
done without a magazine simply by chambering a bullet.
Where the district court declines to exclude evidence
under Rule 403, we reverse only where the district court has
abused its discretion. United States v. Cruz-Kuilan, 75 F.3d _____________ ___________
59, 61 (1st Cir. 1996) (district court's Rule 403 decision
stands absent "extraordinarily compelling circumstances").
Here, the evidence sought to be excluded was patently
relevant and important, while testimony about the prior
condition of the gun was available to mitigate prejudice,
although not wholly to eliminate it. The district court did
not commit reversible error.
-8- -8-
More interesting is Alston's suggestion that the
government violated due process requirements by deliberately
altering evidence that, in its original form, might have
helped to exculpate Alston. The government says that bad
faith is required for a successful due process claim, citing
us to case law suggesting that good faith destruction of
exculpatory evidence by the government does not violate due
process. See Arizona v. Youngblood, 488 U.S. 51, 56-58 ___ _______ __________
(1988); California v. Trombetta, 467 U.S. 479, 488-89 (1984). __________ _________
Compare People v. Newberry, 652 N.E.2d 288, 292 (Ill. 1995). _______ ______ ________
Here, no basis exists for a charge of bad faith or
negligence. To see if the weapon had been used in other
crimes was simply good police work. And the test firing, so
long as the unjamming and rust removal were admitted,
properly helped to confirm that the gun was "designed" to
expel a bullet by explosion. The only disadvantage of which
Alston might fairly complain is that the cleaning and repair
work tended to undermine his scienter argument; and there is
no reason to think that the ATF anticipated the scienter
defense.
We are not prepared to say that the government's "good
faith" is always and everywhere a complete defense to a due
process claim where the government deliberately alters
evidence that might otherwise have exculpated the defendant.
The genre involves the conflicting interests of law
-9- -9-
enforcement and the protection of defendants; there is a vast
kaleidoscope of different possible situations, varying in
conduct, motive, justification and effect. It would be
surprising if a single rubric or rule provided a mechanical
solution to such dilemmas. The due process standard, when
no more specific provision of the Bill of Rights governs, is
one of "fundamental fairness." Trombetta, 467 U.S. at 485. _________
Where law enforcement and criminal procedure are at issue,
the courts have been willing to examine closely any
substantial threat to the fairness of the trial process.
E.g., Brady v. Maryland, 373 U.S. 83, 87-88 (1963). At the ____ _____ ________
same time, we are talking about a constitutional constraint: ______________
however phrased, the threshold for courts to intervene is
fairly high. See Rochin v. California, 342 U.S. 165, 172-73 ___ ______ __________
(1952).
In the present case, it is enough that the government's
alteration of the evidence did not significantly impair
Alston's ability to present a legitimate scienter defense.
As already indicated, Alston was free to present evidence to
give the jury a reasonably effective picture of what the
weapon looked like before it had been cleaned and restored;
and, as noted, most of this evidence was brought out by the
prosecutor. Yes, disputes might exist as to just how much
rust or tape had been removed; but we are talking about
overall fairness and not perfection.
-10- -10-
In his brief in this court, Alston appears to be
suggesting a different objection to the government's
alterations, namely, that by cleaning the gun and freeing the
slide, the government made the weapon a more menacing object;
and this in turn implied that Alston's possession of the gun
presented a greater threat to public safety than the rusted
and frozen weapon actually created. It may well be that the
cleaned-up, working weapon gave the prosecutor a
psychological edge.
Yet Alston was not charged with being a danger but with
being a felon in possession of a firearm. The defendant
cannot ask the jury to nullify the law, whether by
interpolating an element that does not exist or otherwise.
See United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. ___ _____________ _________
1993), cert. denied, 512 U.S. 1223 (1994). By the same _____________
token, we do not think that it is an independent objection to
evidence, otherwise properly admissible, that it may
incidentally reduce the chance that the jury will nullify the
law on its own.
In rejecting Alston's claims, we think it worth adding
that trial judges have considerable latitude in handling
situations of this kind. Rule 403 aside, the spoliation
doctrine--actually several different rules--gives the
district court various remedies for seeking to assure that a
loss of evidence caused by one side does not unfairly
-11- -11-
prejudice the other. See Sacramona v. Bridgestone/Firestone, ___ _________ ______________________
Inc., 106 F.3d 444, 447 (1st Cir. 1997). Under such rules, ____
bad faith is not an automatic requirement for relief. Id. ___
Apart from his attack on the government's use and
alteration of the gun, Alston has several other arguments
relating to trial and sentence. One of them--that no
rational jury could conclude that Alston knew that he had a
gun--requires no extended discussion. The gun was a firearm
under the federal definition, Alston had it in his pocket,
and the jury was certainly not obliged to believe the story
that Alston thought that the gun was something else. See ___
United States v. Staula, 80 F.3d 596, 605 (1st Cir.), cert. _____________ ______ _____
denied, 117 S. Ct. 156 (1996). ______
Alston also attacks his trial attorney's performance.
Normally, we do not consider such claims on direct appeal,
because the record has not been developed in the district
court. Mala v. United States, 7 F.3d 1058, 1063 (1st Cir. ____ _____________
1993), cert. denied, 511 U.S. 1086 (1994). But, in this ____________
case, Alston did present such a claim in the district court
through new counsel, who supported the claim with a 19-page
memorandum; the government responded; and the district court
rejected the claim on the merits. Thus, we may consider the
claim. United States v. Natanel, 938 F.2d 302, 309 (1st Cir. _____________ _______
1991), cert. denied, 502 U.S. 1079 (1992). ____________
-12- -12-
To establish a Sixth Amendment violation, Alston has to
show that his lawyer's performance "fell below an objective
standard of reasonableness," and that prejudice resulted
because, absent the mistake or mistakes, there is a
reasonable probability that the outcome would have been
different. Strickland v. Washington, 466 U.S. 668, 687-88, __________ __________
691-92 (1984); Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. ______ ______
1994), cert. denied, 115 S. Ct. 940 (1995). Alston points to ____________
various alleged mistakes by trial counsel. Even taken
together, these mistakes do not satisfy the Strickland __________
standard.
The brunt of Alston's ineffective assistance claim is
that Alston's counsel, instead of resting after the
government presented its case, should have offered several
defense witnesses for a theory that the defense had
originally proposed. This approach, outlined in defense
counsel's opening statement to the jury, was to retell the
story about the refrigerator move and then to argue or
insinuate that the informant (to secure a reward) probably
placed the gun in Alston's coat pocket after Alston had gone
inside the house to deliver the refrigerator.
Alston had subpoenaed the man who allegedly helped him
move the refrigerator, and we will assume that this witness
might have confirmed that part of the story. But the notion
that the informant planted the gun is pure speculation.
-13- -13-
Alston now says that at least his trial attorney should have
sought disclosure of the informant's name. Government
privilege would make this task difficult, see United States ___ _____________
v. Batista-Polanco, 927 F.2d 14, 19-20 (1st Cir. 1991), but _______________
perhaps not impossible if the informant's testimony were
likely to be very important to the defense. Roviaro v. _______
United States, 353 U.S. 53, 59, 64-65 (1957). _____________
Still, it is hard to imagine the privilege being
overcome where, as here, nothing suggested that the informant
had actually planted the gun. Moreover, the district judge
knew that in moving to suppress, Alston had himself filed an
affidavit indicating that he had picked up the gun after it
fell out of the refrigerator. Whether he put it into his
pocket immediately or left it on the porch temporarily, the
notion of the informant as a deus ex machina was effectively _______________
undermined. There was no likelihood that the court would
have required disclosure of the informant's identity.
Overall, defense counsel at trial had a very weak hand
to play, since Alston was caught in possession of the gun,
and his prior felony convictions were easily proved. To rely
on the notion that Alston did not know it was a gun was
probably a thin reed (although one also grasped by appellate
counsel in this court). Nevertheless, the decision to rely
on this straightforward defense at trial, rather than
complicate it with an even less plausible story about a
-14- -14-
planted weapon, was a choice well within the discretion of
counsel.
Alston's last claim of error relates to enhancement of
his sentence under 18 U.S.C. 924(e), the three-strikes
provision for violent felony convictions. Alston says that
due to the passage of time, his civil rights have been
restored under Massachusetts law for one or more of the
convictions relied upon by the district court to comprise the
three prior violent felonies. Under 18 U.S.C. 921(a)(20),
a conviction "shall not be considered" where inter alia __________
a person . . . has had civil rights restored . . .
, unless such . . . restoration of civil rights
expressly provides that the person may not ship,
transport, possess or receive firearms.
The district court replied that since the first of the
three convictions, Alston has at all times had his civil
rights suspended. In other words, as the sentencing judge
read the statute, a conviction can still be considered under
the three strikes provision, even though enough time had
otherwise passed under state law for the restoration of civil
rights, so long as the period of disability had been
maintained on account of a later conviction. This presents
an interesting problem which need not be resolved in this
case.
Massachusetts materially restricts an ex-felon's right
to carry and traffic in firearms regardless of the passage of
time. United States v. Estrella, 104 F.3d 3, 8 (1st Cir. _____________ ________
-15- -15-
1997). In Estrella, we found these limited restrictions ________
trigger the above-quoted "unless" exception to the provision
relied upon by Alston as restoring his civil rights. 18
U.S.C. 921(a)(20). Estrella was decided after Alston's ________
sentence and the original briefing, but his reply brief has
no effective answer to that decision.
Some might think that a 15-year sentence for carrying a
rusty and inoperable handgun is excessive where there is no
evidence that the defendant was otherwise engaged in crime.
Others might point to Alston's long criminal record, not
fully related in this opinion. It may help to complete the
story by recounting that, at oral argument, the prosecutor
told us that Alston had refused a proffered plea bargain
looking toward a lesser sentence.
Affirmed. ________
-16- -16-
Document Info
Docket Number： 96-1779
Filed Date： 5/5/1997
Precedential Status： Precedential
Modified Date： 9/21/2015