United States v. Combs , 555 F.3d 60 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 06-2258
UNITED STATES OF AMERICA,
Appellee,
v.
ANTOIN QUARLES COMBS,
a/k/a ANTOINE COMBS-QUARLES,
a/k/a ANTOINE COMBS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Boudin and Howard, Circuit Judges.
Douglas J. Beaton for appellant.
Sandra S. Bower, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
February 11, 2009
HOWARD, Circuit Judge. A jury found Antoin Quarles Combs
guilty of being a felon in possession of a firearm and ammunition,
in violation of 18 U.S.C. § 922(g). He was sentenced to 240
months' imprisonment. In this appeal, Combs challenges his
conviction on two grounds: first, that the trial court improperly
declined to give his proposed jury instruction regarding witness
intimidation; and second, that the government failed to offer
sufficient evidence that the firearm and ammunition had traveled in
interstate commerce. We reject both arguments and affirm.
I.
The events leading up to Combs's arrest may be described
briefly. Combs was arrested after a motor vehicle stop in
Dorchester, Massachusetts in 2005. Boston Police Officers John
Conway and Dean Bickerton stopped the car in which Combs and two
others (Somia Hicks and Tanisha Montgomery) were riding, citing
suspicious activity. The officers testified that, after asking the
driver Montgomery for her license and registration, they noticed a
smell of marijuana coming from the car. They asked Combs to step
out of the car, which he did.
Here the narratives offered by the witnesses diverge
slightly. The officers testified that they saw that Combs was
carrying a gun. Hicks, testifying as a defense witness, stated
that she did not see a gun belonging to Combs at any point. The
other differences between Hicks's testimony and the testimony of
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the officers about the events of that evening amount to a
disagreement about the specific words exchanged between Combs and
the officers before and during an ensuing struggle. It is
undisputed that there was an altercation between Combs and the
officers, and that they struck him with their firearms in an
attempt to subdue him. At the conclusion of the struggle, Combs
was handcuffed and arrested. The officers recovered from the scene
a .38 caliber Smith & Wesson revolver and five rounds of .38
caliber Remington Peters ammunition.
In due course, Combs was indicted for being a felon in
possession of a firearm and ammunition. Four days prior to trial,
Lisa Rudnicki, an agent of the bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF), visited Hicks in her home. At trial, Hicks
testified that Rudnicki had asked her a series of questions about
the events surrounding the arrest. In response to her answers to
those questions, Hicks testified, Rudnicki called her a liar and
told her that she could be charged with perjury and sentenced to
ten years in jail.1 Hicks did not testify about either of these
statements made by Rudnicki.
This exchange took place at Hicks's home, in front of two
of Hicks's children, ages three and fifteen. Hicks had her three-
1
In a sidebar conversation with counsel, the trial judge noted
that Rudnicki also suggested to Hicks that Hicks's version of the
events contradicted that of another witness and, in addition, that
Rudnicki told Hicks that Combs had at one point planned to plead
guilty.
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year-old child on her lap during the encounter. Hicks testified
that Rudnicki suggested that she should not "be with" anyone who
had Combs's record, asked her what her children would do without
her, and advised her to put her family first. Hicks testified that
after this conversation, she was very upset and cried for about
thirty or forty-five minutes. She said that she felt threatened
and that she believed Rudnicki was trying to stop her from
testifying in this case. Hicks did, nevertheless, testify at trial
on Combs's behalf both about the arrest and the visit by Rudnicki.
Asserting that Rudnicki's visit with Hicks created an
issue of witness intimidation, Combs's counsel requested a jury
instruction that would permit a finding of reasonable doubt based
on the government's allegedly improper conduct. The proposed
instruction was:
If you find that ATF Special Agent Lisa Rudnicki
attempted to prevent Somia Hicks from testifying by
threats or intimidation, you may draw an inference
adverse to the prosecution. Such an adverse inference
may be sufficient by itself to raise a reasonable doubt
as to the defendant's guilt in this case.
The trial judge declined to give the requested instruction, because
even though Rudnicki's conduct may have been improper, Hicks did in
fact testify.2 The court observed that, "[m]aybe something should
2
The court stated that although Rudnicki's conduct was "quite
close to the line, if not over the line" of impropriety, he did not
have to "reach a decision as to whether [the statements made to
Hicks] were improper, whether they went over the line because the
witness did[] testify . . ."
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be done with regard to the ATF . . . but I'm not inclined to give
an instruction to sanction possible misconduct that I haven't found
to be misconduct in the circumstances where I don't perceive that
the integrity of the trial has been injured."
During closing argument, defense counsel mentioned the
alleged intimidation by Rudnicki, but he did not object to the
instructions given to the jury, even though the trial judge
expressly invited objections at the conclusion of his charge to the
jury. Combs was convicted of being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. § 922(g).
Combs makes two arguments on appeal. First, he contends
that the trial court improperly declined to give his proposed jury
instruction on witness intimidation in response to Rudnicki's
conduct. Second, he argues that the government did not offer
sufficient evidence that the firearm and ammunition had traveled in
interstate commerce, as required by 18 U.S.C. § 922(g).
II.
A. Jury Instruction
In order to properly preserve a challenge to jury
instructions, a defendant must object to the instructions after the
judge has charged the jury. See United States v. Munoz-Franco, 487
F.3d 25, 64 n. 40 (1st Cir. 2007); see also Fed. R. Crim. P. 30(d).
When a defendant fails to object, we review the charge for plain
error only. Munoz-Franco, 487 F.3d at 64 n. 40; see also Fed. R.
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Crim. P. 52(b). Here Combs did not object despite an express
invitation by the trial judge, and we accordingly apply the plain
error test. That test requires that an appellant demonstrate:
"(1) that an error occurred; (2) which was clear or obvious; and
which not only; (3) affected the defendant's substantial rights,
but also; (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Moran, 393
F.3d 1, 13 (1st Cir. 2004) (citation omitted). See also United
States v. Olano, 507 U.S. 725 (1993).
Combs argues that Rudnicki's conduct violated his due
process rights as her actions interfered with Combs's right to
present his defense witnesses freely, and that the proposed
instruction was an "appropriate remedy". See Washington v. Texas,
388 U.S. 14, 19 (1967) (holding that the Sixth Amendment right to
present one's own witnesses as part of one's defense is a
"fundamental element of due process").
The trial judge, although troubled by the agent's alleged
statements, declined to make a finding of misconduct. More to the
point, the court determined that no prejudice resulted from the
conduct. We review that ruling for an abuse of discretion, United
States v. Jahagirdar, 466 F.3d 149, 156 (1st Cir. 2006), but in
fact there is no evidence whatever of actual prejudice. The
witness testified in favor of the defendant; and nothing indicates
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that the testimony was hedged or that even more favorable testimony
was suppressed.
Hicks testified about both her recollection of the events
of the arrest, and the interaction with Rudnicki. Although Combs
characterizes Hicks's trial testimony as "halting[]" and suggests
abstractly that it is impossible to know how Hicks might have
testified absent Rudnicki's conduct, he does not argue that the
substance of her testimony can be shown to have been affected by
the alleged intimidation.
"There can be no violation of the defense's right to
present evidence . . . unless some contested act or omission (1)
can be attributed to the sovereign and (2) causes the loss or
erosion of testimony which is both (3) material to the case and (4)
favorable to the accused." United States v. Hoffman, 832 F.2d
1299, 1303 (1st Cir. 1987). This accords with the ordinary
requirement that a claimed violation cause prejudice.3
3
There is some authority in other circuits that government
intimidation of a defense witness, even absent a showing of
prejudice, can nevertheless amount to a due process violation. See
United States v. Morrison, 535 F.2d 223, 228 (3rd Cir. 1976);
United States v. Hammond, 598 F.2d 1008, 1013 (5th Cir. 1979).
Those opinions predate United States v. Hasting, 461 U.S. 499(1983), where the Supreme Court held that a reviewing court must
ignore harmless errors, including most constitutional violations.
461 U.S. at 509. The court did distinguish three specific rights
as rights that, when violated, can never be treated as harmless
error: respecting counsel, an impartial judge and freedom from
coerced confession. Id. at 508 n.6. None of those rights are at
issue here. Later opinions have acknowledged that Hammond's
analysis is no longer viable in the wake of Hasting. See, e.g.,
Peeler v. Wyrick, 734 F.2d 378, 381 (8th Cir. 1984).
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Accordingly, under the test framed by Hoffman, there was no due
process violation.
The requested instruction also presents a separate issue.
Even though Hicks's testimony was available and employed, the
instruction sought could conceivably be helpful to the defense and
could rest on a theory of its own independent of a due process
violation. An effort to tamper with evidence by a defendant can
sometimes justify an inference of guilt, as can flight, deliberate
provision of a false alibi, and similar conduct. See, e.g.,
United States v. Ayala-Tapia, 520 F.3d 66, 69 (1st Cir. 2008)
(inference from deliberately false alibi); United States v. Otero-
Mendez, 273 F.3d 46, 53 (1st Cir. 2001) (inference from defendant's
flight).
In such cases, an adverse inference is permitted because
the conduct is deemed relevant to the defendant's consciousness of
guilt, see, e.g., United States v. Rosario-Diaz, 202 F.3d 54, 70
(1st Cir. 2000), which may weigh in favor of an inference that the
defendant is in fact guilty. There is however, no direct analogue
to "consciousness of guilt" when an individual government agent is
accused of intimidating the witness; a concern arises if evidence
is thereby lost, see Brady v. Maryland, 373 U.S. 83 (1963), but in
this case evidence was not lost.
The defendant does not point us to any federal decision
calling for an instruction that, where the evidence is not
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affected, the jury may draw an adverse inference against the
government. Combs suggests that the requested instruction was
based on language from two earlier cases. See Merced v. McGrath,
2004 U.S. Dist. LEXIS 2107, at *32 (N.D. Cal., Feb. 10, 2004), and
People v. Zamora, 615 P.2d 1361, 1370 (Cal. 1980). Both cases,
however, involved issues of state and not federal law (with the
former being in federal court on a habeas claim), and in neither
case did the court hold that such an instruction was required.
Without laying down blanket rules, it is enough here that
there was no clear error in refusing the instruction. Like the
district judge, we have no reason to decide whether the questioning
went too far. If we accept Hicks's version, it is not an
especially attractive picture, but law enforcement is not a
delicate business. And to make a complete assessment, the full
context and a range of specific circumstances would need to be
developed. See generally Webb v. Texas, 409 U.S. 95, 98 (1972)
(per curiam).4 Where, as here, the issue involves a particular
fact pattern not likely to be repeated in just the same form, an
assessment is all the more unnecessary.
4
See also United States v. Vega-Figureroa, 234 F.3d 744, 752
(1st Cir. 2000); United States v. Jackson, 935 F.2d 832, 847 (7th
Cir. 1991); United States v. Morrison, 535 F.2d 223, 228 (3d Cir.
1976); United States v. Thomas, 488 F.2d 334, 336 (6th Cir. 1973);
United States v. Smith, 478 F.2d 976, 978-79 (D.C. Cir. 1973).
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B. Firearm and Ammunition
Combs challenges the sufficiency of the evidence for one
element of the underlying offense: the requirement under 18 U.S.C.
§ 922(g) that the firearm or the ammunition be "in or affecting
commerce."5 We review sufficiency challenges to determine whether
the evidence presented at trial, together with all reasonable
inferences and viewed in the light most favorable to the verdict,
would allow a rational jury to establish the defendant's guilt
beyond a reasonable doubt. See United States v. Lopez-Lopez, 282
F.3d 1, 19 (1st Cir. 2002).
Combs's arrest and the recovery of the firearm and
ammunition took place in Dorchester, Massachusetts.6 We conclude
that the jury reasonably determined there was sufficient evidence
that the ammunition was "in or affecting commerce." In this
regard, we note that the felon in possession statute applies
independently to the possession of the firearm or the ammunition.
If either the firearm or the ammunition was "in or affecting
5
That statute provides in relevant part:
It shall be unlawful for any person --
(1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year;
. . .
to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.
6
At trial, Combs suggested that the gun was planted on him.
On appeal, however, he does not challenge the finding that he was
in possession of the gun and the ammunition.
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commerce," that is sufficient to meet the requirements of 18 U.S.C.
§ 922(g). Although there also may well have been sufficient
evidence that the firearm was "in or affecting commerce," we need
not reach this question here.7
In Scarborough v. United States, 431 U.S. 563, 572
(1977), the Supreme Court addressed the "in or affecting commerce"
requirement of a precursor to the current felon in possession
statute. The Court established a "minimal nexus" standard,
requiring proof only of interstate travel of a firearm or
ammunition. Id. In United States v. Wilkerson, 411 F.3d 1, 9-10
(1st Cir. 2005), we applied Scarborough and held that a firearm or
ammunition is "in or affecting commerce" for the purposes of 18
U.S.C. § 922(g) if it has "traveled at some time" in interstate
commerce. We have also said that the standard requires a showing
that a firearm or ammunition has "been transported across State
lines." United States v. Weems, 322 F.3d 18, 25 (1st Cir. 2003),
cert. denied, 540 U.S. 892 (2003).
Combs would have us interpret the statute differently.
He points to Jones v. United States, 529 U.S. 848, 855 (2000), and
argues that the government must show that a firearm or ammunition
had more than "merely a passive, passing, or past connection to
commerce." Jones, involving a federal arson statute, is
7
The government introduced evidence that the firearm was
manufactured by Smith & Wesson Corporation in Springfield,
Massachusetts and was shipped to New York in January, 1977.
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inapplicable here. Combs's exact argument has been before us in
Wilkerson and in Weems, and we rejected it on those occasions as we
do here.8 The language linking the regulated conduct to commerce
in the statute in Jones differs from the language of 18 U.S.C. §
922(g), and Jones does not disrupt the Court's holding in
Scarborough.
The government presented uncontroverted evidence that
there are no commercial manufacturers of ammunition in the state of
Massachusetts, as well as uncontroverted evidence that Remington
Peters, the manufacturer of the recovered ammunition, has two
manufacturing facilities: one in Connecticut and one in Arkansas.
Thus, ammunition recovered in Dorchester, Massachusetts must have
crossed state lines to get there.
In conclusion, (1) there was no error in the district
court's refusal to issue Combs's requested instruction; and (2)
there was sufficient evidence for a jury to conclude that either
the firearm or the ammunition were "in or affecting commerce" as
required by 18 U.S.C. § 922(g).
Affirmed.
8
Other circuits have treated this issue identically, holding
the nexus to interstate commerce to be satisfied under 18 U.S.C. §
922(g) if the firearm or ammunition has "traveled at some time" in
interstate commerce. See United States v. Sawyers, 409 F.3d 732,
736 (6th Cir. 2005); see also United States v. Darrington, 351 F.3d
632, 634 (5th Cir. 2003); United States v. Gaines, 295 F.3d 293,
302 (2d Cir. 2002); United States v. Gallimore, 247 F.3d 134, 138
(4th Cir. 2001).
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