DocketNumber： 95-1093
Filed Date： 8/28/1996
Status： Precedential
Modified Date： 9/21/2015
[This opinion is For Pubication as of October 21, 1996.]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1093
UNITED STATES,
Appellee,
v.
RAYMOND J. BLAIS,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Campbell, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
_____________________
John J. Barter, by Appointment of the Court, for appellant. ______________
Margaret E. Curran, Assistant United States Attorney, with __________________
whom Sheldon Whitehouse, United States Attorney, and Stephanie S. __________________ ____________
Browne, Assistant United States Attorney, were on brief for ______
appellee.
____________________
August 28, 1996
____________________
TORRUELLA, Chief Judge. Defendant-appellant Raymond J. TORRUELLA, Chief Judge. ___________
Blais ("Blais") appeals his conviction under 18 U.S.C.
922(g)(1), as well as his resulting sentence of 235 months in a
federal corrections facility plus five years' supervised release.
We affirm the judgment of the district court in both regards.
I. BACKGROUND I. BACKGROUND __________
On February 3, 1994, Blais was arrested in Providence,
Rhode Island, after Providence police discovered a firearm in his
apartment. On May 27, 1994, a federal grand jury returned a one-
count indictment charging Blais with being a felon in possession
of a firearm, in violation of 18 U.S.C. 922(g)(1). On June 29,
1994, Blais filed a motion to suppress, which was denied on
October 12, 1994.
Viewed in the light most favorable to the verdict,
United States v. Bartelho, 71 F.3d 436, 438 (1st Cir. 1995), the ______________ ________
following facts could have been found by a reasonable jury. O n
February 3, 1994, Providence Police Reserve Officers Timothy
Dupuis ("Officer Dupuis") and David Paolino ("Officer Paolino")
went to 160 Benedict Street, a Providence Housing Authority high-
rise apartment building, in response to a report of a
disturbance. The complainant, Geraldine McGill ("McGill"),
alleged that Blais had threatened her verbally and physically,
and that he possessed a firearm. In response, Officer Dupuis,
Officer Paolino and a security guard, Alan Rivera ("Rivera"),
headed for Blais's apartment. Officer Dupuis walked down the
hallway first, and he spotted a man, whom he later learned was
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Blais, carrying a handgun. After seeing the man enter an
apartment, Officers Dupuis and Paolino knocked on the door and
announced that they were police officers. Failing to receive a
response, they again knocked and announced their identities,
after which the apartment's occupant asked who was there.
Officer Dupuis again stated that it was the police. Failing to
obtain any further response, the officers knocked and announced
themselves a third time. In response to another inquiry, Officer
Dupuis stated that it was the police and that the occupant should
open the door. At this point, Blais opened the door and invited
them in, saying, "Come on in, I'll talk to you in my apartment."
Officers Dupuis and Paolino, and then later Rivera,
entered the apartment, which consisted of a single open room that
functioned as a bedroom, living room and dining room. The
officers proceeded to question Blais, who appeared intoxicated,
about the incident with McGill. At some point during this
questioning, Blais sat down on the corner of the bed, and Officer
Dupuis spotted a firearm lying on the bed behind Blais.
At trial, the parties stipulated as to Blais's prior
conviction of a crime punishable by a term of more than one year
in prison prior to February 3, 1994, and on November 8, 1994, the
jury returned a verdict of guilty on the indictment's lone count.
On January 11, 1995, Judge Lisi sentenced Blais to 235 months in
prison, as well as a 5-year term of supervised release and the
statutory assessments.
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II. DISCUSSION II. DISCUSSION __________
Blais makes four types of argument. The first set
hinges on his contention that, in light of United States v. ______________
L pez, ___ U.S. ___, 115 S. Ct. 1624, 1626-27 (1995), his _____
indictment, his jury instructions and his conviction are
unconstitutional, or, failing that, the government failed to meet
its burden under L pez with respect to showing an effect on _____
interstate commerce. Second, Blais contests the district court's
denial of his motion to suppress. Third, he challenges the
district court's denial of his motion for exculpatory evidence.
Fourth, and finally, he argues that the district court erred by
refusing to limit or identify which of Blais's prior convictions
it would allow the government to introduce if he were to deny
committing the present offense.
A. The Constitutionality of Section 922(g)(1), A. The Constitutionality of Section 922(g)(1),
Interstate Commerce and Related Arguments Interstate Commerce and Related Arguments
Blais makes four related arguments regarding section
922(g)(1) and the issue of whether his conviction is pursuant to
a proper exercise of the power of the federal government. Citing
L pez, ___ U.S. ___, 115 S. Ct. 1624, Blais argues that: (1) the _____
statute under which he was charged and convicted is
unconstitutional; (2) his indictment was defective for lack of
any allegation of effect on interstate commerce; (3) the jury was
improperly instructed in a manner that omitted any element of
substantial effect on interstate commerce; and (4) the district
court erred in denying his motion for a judgment of acquittal
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based on the Government's failure to meet its burden to show an
effect on interstate commerce.
In L pez, the Supreme Court struck down the Gun-Free _____
School Zones Act, 18 U.S.C. 922(q), which prohibited a person
from possessing a gun while in a "school zone." L pez, ___ U.S. _____
at ___, 115 S. Ct. at 1631; see United States v. McAllister, 77 ___ ______________ __________
F.3d 387, 389 (1st Cir. 1996). The Court held that in passing
section 922(q), Congress exceeded its power under the Commerce
Clause because that statute was
not an essential part of a larger
regulation of economic activity, in which
the regulatory scheme could be undercut
unless the intrastate activity were
regulated. It cannot, therefore, be
sustained under our cases upholding
regulations of activities that arise out
of or are connected with a commercial
transaction, which viewed in the
aggregate, substantially affects
interstate commerce.
L pez, ___ U.S. at ___, 115 S. Ct. at 1631. Blais's argument _____
with respect to section 922(g)(1) is essentially that: (1) the
statute provides that it is unlawful for a felon
to ship or transport in interstate or
foreign commerce, or possess in or _______
affecting commerce, any firearm or ____________________
ammunition; or to receive any firearms or
ammunition which has been shipped or
transported in interstate commerce,
18 U.S.C. 922(g)(1) (emphasis added); and (2) this court should
not assume that Congress must have meant "affecting interstate __________
commerce" when it said "affecting commerce" with respect to
firearm possession by a felon. As a result, claims Blais, he was
charged pursuant to an unconstitutional statute.
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However, Blais's challenge to the statute's
constitutionality is foreclosed by previous decisions of this
court. Since L pez, this court has twice ruled that a facial _____
challenge to the constitutionality of the statute at issue, 18
U.S.C. 922(g)(1), is "hopeless on . . . the law."
United States v. Bennett, 75 F.3d 40, 49 (1st Cir. 1996), 75 F.3d _____________ _______
40, 49 (1st cir. 1996) (citing Scarborough v. United States, 431 ___________ _____________
U.S. 563 (1977) (discussed in United States v. L pez, ___ U.S. _____________ _____
___, 115 S. Ct. 1624 (1995))) ; United States v. Abernathy, ___ _____________ _________
F.3d ___, 1996 WL 199620, *2 (1st Cir. 1996) (rejecting post-
L pez Commerce Clause-based challenge to power of Congress to _____
enact 922(g)(1) and 922(k) and quoting Bennett's description _______
of "hopeless[ness]")); see also United States v. Joost, ___ F.3d _________ _____________ _____
___, No. 95-2032, slip op. at 17 (1st Cir. Aug. 7, 1996). The
implication of our holding in Bennett is that Scarborough is _______ ___________
still good law after L pez. Bennett, 75 F.3d at 49. We state _____ _______
that here more fully. In so doing, we are in accord with the
other circuit courts that have confronted similar post-L pez _____
challenges to section 922(g)(1). See United States v. ___ _______________
McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (stating that __________
"[n]othing in L pez suggests that the 'minimal nexus' test should _____
be changed"); United States v. Sorrentino, 72 F.3d 294, 296-97 ______________ __________
(2d Cir. 1995); United States v. Bell, 70 F.3d 495, 497-98 (7th _____________ ____
Cir. 1995); United States v. Hinton, 69 F.3d 534, 1995 WL 623876 _____________ ______
(per curiam) (unpublished decision 4th Cir. 1995), cert. denied, ____________
116 S. Ct. 1026 (1996); United States v. Bolton, 68 F.3d 396, 400 _____________ ______
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(10th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996); United ____________ ______
States v. Shelton, 66 F.3d 991 (8th Cir. 1995) (per curiam), ______ _______
cert. denied, 116 S. Ct. 1364 (1996); United States v. Mosby, 60 ____________ ______________ _____
F.3d 454, 456 (8th Cir.), cert. denied, 116 S. Ct. 938 (1996); ____________
United States v. Hanna, 55 F.3d 1456, 1462 n.2 (9th Cir. 1995); _____________ _____
see also United States v. Spires, 79 F.3d 464, 466 (5th Cir. ________ _____________ ______
1996) (upholding the statute under plain error review). We also
note in passing that, confronting a L pez-based challenge, this _____
court also has upheld charges for possession of a firearm with an
obliterated serial number under 18 U.S.C. 922(k) as
constitutional, and that statute's language, like the language
Blais challenges, also makes it unlawful for a felon to "possess
in or affecting commerce, any firearm or ammunition." United ______
States v. D az-Mart nez, 71 F.3d 946, 953 (1st Cir. 1995). ______ _____________
Given the constitutionality of the statute, we believe
that the indictment and the jury instructions are similarly
valid, since both tracked the language of the statute in
question. Furthermore, the district court read to the jury both
the statute and the indictment and specifically instructed the
jury that as one of the elements of the crime in question, the
prosecution had to prove beyond a reasonable doubt that the
firearm had been in or affecting interstate commerce. The __________
district court stated that "[t]he Government may meet its burden
with respect to this element by proving a connection or link
between interstate commerce and the possession of the firearm."
The court went on to state that "[i]t is sufficient for the
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Government to satisfy this element to prove that the firearm,
allegedly possessed by the Defendant, had[,] at some time
previously, travelled across a state line" -- a proposition
supported by the Supreme Court's holding in Scarborough, 431 U.S. ___________
at 575 (holding, under the predecessor statute to 922(g)(1),
that proof that the possessed firearm previously travelled in
interstate commerce was sufficient to establish an adequate
interstate nexus).
Blais also argues that the district court should have
allowed his motion for a judgment of acquittal on the grounds
that the government's sole evidence on the element of "affecting
interstate commerce" was the out-of-state manufacture of the
handgun. Having already rejected his arguments about L pez's _____
alteration of the Scarborough standard of minimal nexus, we ___________
conclude that the evidence proffered by the government was
sufficient to meet its required showing of minimal nexus with
interstate commerce. See McAllister, 77 F.3d at 390 (evidence ___ __________
that a gun had previously travelled in interstate commerce before
felon's possession held sufficient to meet required showing for
minimal nexus). As a result, we uphold the district court's
denial of Blais's motion for a judgment of acquittal.
B. The Motion to Suppress B. The Motion to Suppress
With respect to the motion to suppress, we review a
district court's findings of fact only for clear error, Bartelho, ________
71 F.3d at 441; United States v. Mart nez-Molina, 64 F.3d 719, ______________ _______________
726 (1st Cir. 1995), but questions of law are subject to de novo _______
-8-
review, Ornelas v. United States, 116 S. Ct. 1657 (1996); _______ ______________
Bartelho, 71 F.3d at 441; United States v. Zapata, 18 F.3d 971, ________ _____________ ______
975 (1st Cir. 1994).
Prior to trial, Blais moved to suppress the evidence
obtained during the officers' February 3 visit to his apartment.
Based on the facts presented at the evidentiary hearing, the
district court denied Blais's suppression motion. The district
court rested its conclusion on the findings that the totality of
the circumstances established that Blais voluntarily and
knowingly invited the police officers into his apartment, and
that the officers saw the gun lying on the bed in plain view.
We agree with the district court's denial of Blais's
motion to suppress. Based on the testimony of Officer Dupuis,
Officer Paolino and Rivera, the evidence at the suppression
hearing reasonably supported the district court's finding that
Blais gave his consent to entry, and that that consent was
voluntary. Blais argues that the officers failed to advise him
of his right to deny entry. However, while the failure to inform
an individual that he has a right to withhold consent is a factor
to be weighed in determining the issue of voluntariness, such a
failure does not preclude a finding of valid consent. See ___
Schneckloth v. Bustamonte, 412 U.S. 218, 245 (1973); Zapata, 18 ___________ __________ ______
F.3d at 977. The district court also properly rejected any claim
of coercion. While Blais claims that the circumstances were
inherently coercive because he was a 69-year-old man confronted
by two officers and a security guard, the evidence showed that
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the three men did not enter until Blais invited them in on his
own initiative. As a result, we conclude that the district court
did not commit error in finding that Blais admitted the officers
and the security guard into his apartment voluntarily.
The district court found that testimony at the
suppression hearing also showed that the firearm discovered was
lying on the bed in plain view of the officers as they questioned
Blais. Defendant's argument that the district court erred in
making this finding is based on a challenge to the credibility of
the officers and the security guard. However, credibility
determinations are for the district court, not us, to make. See ___
United States v. Patrone, 948 F.2d 813, 816 (1st Cir. 1991), ______________ _______
cert. denied, 504 U.S. 978 (1992). And even if the testimony in ____________
question is, as Blais argues, subject to another plausible
reading, the district court's choice of one of two competing
interpretations of the evidence cannot be clearly erroneous.
United States v. Cruz-Jim nez, 894 F.2d 1, 7 (1st Cir. 1990). _____________ ____________
Because we conclude that the district court's findings
of invited entry and plain view were not erroneous, we affirm its
denial of Blais's motion to suppress.
C. The Motion for Exculpatory Evidence C. The Motion for Exculpatory Evidence
Blais contends that the district court erred in
quashing certain subpoenas issued for the suppression hearing.
On appeal, Blais points to quashed subpoenas for arrest records
and reports of the Providence Police Department, including the
report of the officers' interview with McGill.
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First, Blais argues that the Jencks Act, 18 U.S.C.
3500, entitles him to these documents. However, the Act
"establishes procedures whereby a criminal defendant may exercise
his limited right to obtain previous statements made by
government witnesses that are in the possession of the United
States to be used for impeachment purposes." United States v. _____________
Neal, 36 F.3d 1190, 1197 (1st Cir. 1994). McGill was not a ____
government witness and did not testify. The statements of all
the witnesses who did testify at the suppression hearing were
turned over.
Second, Blais contends that the sought-after
information constituted material he was entitled to under Brady _____
v. Maryland, 373 U.S. 83 (1963), for impeachment purposes. ________
However, Brady error occurs when the government suppresses _____
"material" information that is favorable to the defense. See ___
Gilday v. Callahan, 59 F.3d 257, 267 (1st Cir. 1995), cert. ______ ________ _____
denied, 116 S. Ct. 1269 (1996). Information is "material" "if ______
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different." United States v. Bagley, 473 U.S. 667, 682 _____________ ______
(1985). Blais has failed to articulate any theory demonstrating
such a reasonable probability.
In fact, Blais has failed to show that any of the
additional arrest records or police reports that he seeks even
exist. Indeed, McGill's statement could not have been
exculpatory. While her complaint was the impetus for the
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officers' and the security guard's visit, her statement could
have had no relevance to the issues at the suppression hearing:
whether Blais admitted the officers to his apartment voluntarily
and whether the firearm was in plain view. As a result, we
uphold the district court's decision to quash the subpoenas at
issue.
D. Blais's Prior Convictions D. Blais's Prior Convictions
Blais also contends that the district court erred by
failing to explain more fully its ruling with regard to the
admissibility of his prior convictions. The ruling in question
was rendered in response to Blais's motion in limine to exclude
criminal convictions greater than ten years old. The government
objected, filing a memorandum in support, arguing that the
convictions should be admissible for impeachment of Blais
pursuant to Federal Rule of Evidence 609. In the course of a
hearing on the motion, the government withdrew its objection to
the exclusion of all previous convictions save four which fell
within the ten-year limit because Blais had been released from
his prison term for those convictions less than ten years
previously. By doing so, the government cleared the way for the
exclusion of a number of Blais's previous convictions that
involved the use or possession of firearms. The district court
ruled that three convictions (for armed robbery, kidnapping and
driving away in an automobile) could come in. The district court
explained its ruling to defense counsel as follows:
So we're left, [counsel], with three
previous convictions, none of which are
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greater than ten years old. The armed
robbery, kidnapping and the unlawfully
driving off an auto, which I'm ruling
will be admissible to impeach the
credibility of Mr. Blais should he decide
to testify under 609. Depending upon
what Mr. Blais says on the stand, the
Government may seek permission of the
Court to introduce any of the other
convictions under another rule.
Defense counsel sought further elaboration as to the last point,
asking whether testimony denying the firearm possession charge
would be viewed by the court as opening the door to the other
convictions. The court responded: "read the Norton case. I'm ______
not going to do your homework for you."
Blais argues that the court's cryptic reference to
United States v. Norton, 26 F.3d 240 (1st Cir. 1994), provided ______________ ______
little guidance, since Norton recognizes that "[t]he district ______
court is vested with broad discretionary power to admit or
exclude evidence." Id. at 243. Reading Norton, we do not agree. ___ ______
The defendant in Norton, like Blais, was charged with being a ______ _____
felon-in-possession, had a prior firearm conviction, and had
succeeded in persuading the trial court to exclude as
inadmissible all his prior convictions greater than ten years
old, including his prior firearm conviction. However, in the
course of his testimony, the defendant in Norton denied not only ______
possessing the gun identified in the indictment, but in fact
denied having ever possessed a gun in his life. The prosecutor
sought and was granted permission to introduce the prior firearm
conviction to contradict the defendant's false and material
testimony. In upholding the district court's ruling, this court
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explained that "[o]nce Norton denied that he had ever possessed a
gun, he opened the door to the issue of his prior or present
firearm possession." Id. at 244. As a result, Norton could not ___
complain that he was unfairly prejudiced by the introduction of
the conviction to show that he lied. Id. at 244-45. ___
We conclude that the district court's explanation was
hardly cryptic. While it may have required that Blais's counsel
do some reading, that is certainly not reversible error.
III. CONCLUSION III. CONCLUSION __________
As a result of the foregoing, the judgment of the
district court is affirmed. affirmed ________
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United States v. Lopez ( 1995 )
United States v. Bagley ( 1985 )
United States v. Kenneth Joseph Patrone ( 1991 )
United States v. McAllister ( 1996 )
United States v. Luciano Sorrentino ( 1995 )
United States v. Gary P. Neal, United States v. William F. ... ( 1994 )
United States v. Spires ( 1996 )
United States v. Jose M. Cruz Jimenez ( 1990 )
United States v. Martinez Molina ( 1995 )
United States v. Aaron Shelton ( 1995 )
United States v. Bartelho ( 1995 )
United States v. Diaz-Martinez ( 1995 )
United States v. Norton ( 1994 )
United States v. Kenneth L. Bell ( 1995 )
United States v. John W. Bolton, A/K/A Gino ( 1995 )
United States v. Cyril T. Hanna ( 1995 )
United States v. Bennett ( 1996 )