United States v. Collins ( 1995 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    ____________________


    No. 94-1049

    UNITED STATES,

    Appellee,

    v.

    TERRY LYNN COLLINS,

    Defendant-Appellant.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Robert E. Keeton, U.S. District Judge] ___________________

    ____________________

    Before

    Boudin and Lynch, Circuit Judges, ______________
    and Schwarzer,* Senior District Judge. _____________________

    ____________________

    Lawrence Rizman for the appellant. _______________
    Michael Pelgro, Assistant United States Attorney, with whom _______________
    Donald K. Stern, United States Attorney, and Ralph F. Boyd, Jr., ________________ ____________________
    Assistant United States Attorney, were on brief, for the United
    States.


    ____________________

    July 20, 1995
    ____________________

    * Of the District of Northern California, sitting by designation.



















    LYNCH, Circuit Judge. Convicted of being a felon LYNCH, Circuit Judge. _____________

    in possession of a firearm in violation of 18 U.S.C.

    922(g)(1), Terry Lynn Collins received a sentence of more

    than 15 years (188 months) in prison. He appeals, claiming

    that his conviction should be reversed under United States _____________

    v. Tavares, 21 F.3d 1 (1st Cir. 1994)(en banc), in which this _______

    court, after Collins' trial, changed its rule concerning the

    admissibility of the nature of the prior felony conviction in

    prosecutions under 922(g)(1). Collins also argues that the

    court abused its discretion in admitting as an "excited

    utterance" the statement of his intended victim and that

    overall the evidence is insufficient to support his

    conviction. His conviction is affirmed.

    First, the facts, as they were presented to the

    jury. Renewing an old and unfriendly acquaintance, Collins,

    leaning out of his car window, got into an escalating

    argument with Harry Albizu in front of Albizu's parents' home

    in Fitchburg on April 29, 1992. When Harry's hefty older

    brother appeared on the front steps, Collins drove off,

    yelling back to Harry, "I'll be right back. I'm gonna shoot

    your fuckin' ass." Apparently believing Collins to be a man

    of his word, an upset Harry Albizu hailed a police car,

    containing Fitchburg State College Police Officer Lord, told

    him of the threat, and Officer Lord radioed the Fitchburg


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    Police for help. Albizu's sister called the police in the

    meantime.

    Sure enough, Collins returned shortly, driving the

    Camaro he and his wife had just bought, and this time

    bringing two men with him. Collins yelled for Albizu to come

    out and out Albizu came, but only to the porch. Collins

    tried to entice Albizu down from the porch steps with various

    insults concerning Albizu's relationship with his mother.

    Albizu tried to persuade Collins to leave, but the

    weightlifting bar he threw at Collins missed.

    Hearing police sirens approaching, Collins gestured

    to his two comrades. They put a long stick-like object that

    was wrapped up into the hatch of the Camaro. As the police

    arrived, Collins, still yelling at Albizu, backpedaled toward

    his car.

    Police Officer Romano, as he patted down Collins

    at the side of the Camaro, saw shotgun shells on the back

    seat. The hatch door to the car was ajar. As Officer Romano

    looked in, he saw a pump shotgun in a partially zippered case

    next to two loose shotgun shells. The gun was fully loaded.

    A fishing license and fishing rods, also in the hatch,

    belonged to Collins. Officer Romano asked Collins if the

    shotgun was his. Collins replied sarcastically, "No. It's

    yours."





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    Collins was placed under arrest. Hearing that he

    was being arrested, an agitated Collins pointed at Albizu,

    and said to a police officer he knew, "Why am I being

    arrested? They've got guns too."

    Simultaneously, Police Officer Raymond was

    interviewing Albizu. A visibly upset Albizu described the

    initial argument he had had with Collins, and quoted Collins'

    statement as described earlier.

    The gun was owned by Collins' father, who kept it

    at his house, which was where Collins lived.



    The Tavares Claim __________________

    The prosecution at trial introduced, without

    objection, Collins' prior felony conviction for manslaughter

    and referred several times to the manslaughter conviction in

    argument. Collins' counsel did not offer to stipulate that

    Collins was a felon for purposes of 922(g)(1). Indeed,

    under the law of this Circuit at the time of trial, the

    government would not have been required to accept such a

    stipulation. See United States v. Collamore, 868 F.2d 24, 28 ___ _____________ _________

    (1st Cir. 1989). Several months after Collins' trial, this

    Court changed that rule in United States v. Tavares, 21 F.3d _____________ _______

    1, 5. Tavares "revisited this issue and determined that when _______

    a defendant is charged with being a felon-in-possession of a

    firearm, evidence of the nature of the prior conviction is



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    not admissible unless special circumstances establish that

    the relevance of the evidence is 'sufficiently compelling to

    survive the balancing test of Fed. R. Evid. 403.'" United ______

    States v. Lewis, 40 F.3d 1325, 1342-43 (1st Cir. ______ _____

    1994)(quoting Tavares, 21 F.3d at 5). _______

    This Court has twice since applied Tavares. _______

    In United States v. Melvin, 27 F.3d 703 (1st Cir. 1994), the ______________ ______

    court applied Tavares retroactively to cases pending on _______

    direct review where counsel had offered to stipulate. Id. at ___

    706-07 n.4. In Melvin, the court reversed, finding that the ______

    admission of the convictions on the facts was not harmless

    error. Id. at 709. In United States v. Lewis, 40 F.3d 1325 ___ _____________ _____

    (1st Cir. 1994), the court applied Tavares where defense _______

    counsel had offered to stipulate, but found that any error

    was harmless. Id. at 1342-43. ___

    Hoping to benefit from Tavares, Collins attempts to _______

    shoehorn his arguments into categories that ill fit. He

    argues that he suffered from ineffective assistance of

    counsel because his counsel neither objected to nor offered

    to stipulate as to the manslaughter conviction.1 But


    ____________________

    1. This Court does not normally consider ineffective
    assistance of counsel claims on direct appeal. See, e.g., ___ ____
    United States v. Costa, 890 F.2d 480, 482-83 (1st Cir. 1989). _____________ _____
    When the record is sufficiently developed to allow analysis,
    however, an appellate court may determine the merits of such
    a contention on direct appeal. See United States v. Natanel, ___ _____________ _______
    938 F.2d 302, 309 (1st Cir. 1991), cert. denied, 502 U.S. _____ ______
    1079 (1992). This case falls within the exception.

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    counsel made no error in light of the law at the time. The

    test for an ineffective assistance of counsel claim as

    articulated in Strickland v. Washington, 466 U.S. 668 (1984), __________ __________

    is not met. Collins also argues that the admission of the

    conviction was barred by Fed. R. Evid. 403, as unduly

    prejudicial. Inasmuch as there was no objection, the normal

    standard of review for such a claim would be for plain error

    under Fed. R. Crim. P. 52(b), as explicated by the Supreme

    Court in United States v. Olano, 113 S. Ct. 1770 (1993). _____________ _____

    Counsel, though, can hardly be faulted for not

    objecting or for failing to stipulate, given the law at the

    time. Considerations of fairness also raise questions about

    the appropriate standard of review where the failure to

    object (or to stipulate) most likely was based on counsel's

    correct understanding of the law at the time.

    In United States v. Marder, 48 F.3d 564 (1st Cir.), _____________ ______

    cert. denied, 115 S. Ct. 1441 (1995), this Court addressed an _____ ______

    analogous situation. Without objection, the district court

    had instructed on the elements of the government's case in

    accordance with the law at the time. A subsequent Supreme

    Court decision made clear that an additional instruction on

    willfulness was required, to the effect that the jury had to

    find that the defendant knew the currency structuring in

    which he was engaged was unlawful. Id. at 572-73. This ___

    Court then faced the issue the Olano court specifically _____



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    reserved: what happens "where the error was unclear at the

    time of trial but becomes clear on appeal because the

    applicable law has been clarified." Id. at 573 (quoting ___

    Olano, 113 S. Ct at 1777). _____

    The Marder court applied plain error analysis. It ______

    is worth noting that Marder had less sympathy with counsel's ______

    failure to object and for good reason. At the time of trial,

    this Circuit's law foreshadowed the Supreme Court's decision

    and the precise issue had caused withdrawal of an opinion by

    this Court and reconsideration en banc. Counsel was on

    notice. Id. at 572 n.5. The Marder court avoided analysis of ___ ______

    issues that have divided other circuits on whether an "error"

    occasioned by a change in law was plain error and whether the

    defendant's substantial rights were affected2 by turning to

    the last prong of the Olano analysis: whether the "error" _____

    "seriously affects the fairness, integrity or public

    reputation of the judicial proceedings." Id. at 574 ___

    (quoting Olano, 113 S. Ct. at 1779)). Marder held that a _____ ______

    defective willfulness instruction did not have any of those

    effects, disagreeing with the views of three other circuits.


    ____________________

    2. The Second Circuit has held that where the court has
    clarified the law, fairness requires that the burden on plain
    error analysis be shifted to the government to show that any __________
    error did not affect the defendant's substantial rights,
    varying from Olano's rule that in the usual plain error _____
    analysis the burden is on the defendant to show actual _________
    prejudice. See United States v. Viola, 35 F.3d 37, 42 (2d ___ _____________ _____
    Cir. 1994), cert. denied, 115 S. Ct. 1270 (1995). _____ ______

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    Id. at 574-75. Applying that analysis here, the admission of ___

    the manslaughter conviction does not present even as serious

    a challenge as that posed in Marder, and certainly does not ______

    rise to the level required by Olano. See also United States _____ ___ ____ _____________

    v. Gaudin, 63 U.S.L.W. 4611, 4616-17 (1995) (Rehnquist, C.J., ______

    concurring); United States v. Whiting, 28 F.3d 1296, 1309 ______________ _______

    (1st Cir.), cert. denied 115 S. Ct. 378 (1994). _____ ______

    Even if we allow for the differences between the

    positions of counsel who failed to object in Marder and this ______

    case, it does not assist Collins. If there was any error

    here, regardless of who has the burden on prejudice, such

    error was not prejudicial. The district court on several

    occasions gave limiting instructions as to the manslaughter

    conviction, and the evidence of Collins' guilt was

    overwhelming, including evidence from his own mouth.



    Excited Utterance _________________

    Collins argues that the district court erred in

    admitting into evidence Albizu's statement to Officer Raymond

    that Collins had said, "I'll be right back. I'm gonna shoot

    your fuckin' ass." Collins argues that Albizu's testimony at

    trial -- that the threat had been "I'm going to come back

    and get your ass" -- did not confirm the statement. The

    variance does not make the statement inadmissible, but only





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    raises questions of credibility for the jury to decide. See ___

    United States v. Portalla, 985 F.2d 621, 624 (1st Cir. 1993). _____________ ________

    The district court's decision to admit evidence is

    reviewed for an abuse of discretion. United States v. ______________

    Bailey, 834 F.2d 218, 228 (1st Cir. 1987). The statement met ______

    the three pronged test under Fed. R. Evid. 803(2), i.e., (i) ____

    the declarant experienced a startling event; (ii) the

    statement was made while the declarant was subject to the

    influence of the event; and (iii) the statement related to

    the event. See id. Albizu experienced the startling event of ___ ___

    Collins threatening to return and shoot him. While Albizu

    was visibly upset and agitated, Albizu made his statement to

    Officer Raymond after Collins' second visit, earlier having

    made a similar statement to Officer Lord. The statement

    self-evidently related to the events at hand. The question

    for the district court was whether a jury could find the

    conditional fact upon which the relevancy of the statement

    turned (i.e., whether Albizu made the statement) by a ____

    preponderance of the evidence. Huddleston v. United States, __________ _____________

    485 U.S. 681, 690 (1988). There were sufficient indicia of

    reliability as to Officer Raymond's report. See Portalla, ___ ________

    985 F.2d at 624. Officer Raymond wrote Albizu's statement

    down verbatim, Albizu separately made a substantially similar

    excited utterance to Officer Lord, and Collins did return to

    resume the argument with a loaded shotgun.



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    Sufficiency of the Evidence ___________________________

    Collins argues that the government presented

    insufficient evidence to convict him of being a felon in

    possession of a firearm because he was a mere passenger in

    the car in which the firearm was found. This argument is

    without merit.

    Our inquiry is whether there was evidence from

    which a rational trier of fact could conclude that Collins

    was guilty beyond a reasonable doubt. See United States v. ___ _____________

    Moreno, 991 F.2d 943, 944 (1st Cir. 1993), cert. denied, 114 ______ _____ ______

    S. Ct. 457 (1994). Collins had a motive to possess the

    firearm, he had just had an argument with Albizu in which he

    had threatened to return and shoot Albizu, Collins did return

    in a car with a loaded shotgun and extra ammunition,

    Collins' friends moved the gun upon his gesture, the gun was

    kept in the house where Collins lived, and when arrested,

    Collins complained to the police that Albizu had guns too. ___

    The conviction is affirmed. ________

















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