United States v. Alston

• Court: Court of Appeals for the First Circuit
• Decided: May 5, 1997
• Docket: 96-1779
• Status: Published

Opinion

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.


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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.


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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.


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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


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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


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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


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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.


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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


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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.


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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


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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).
                   ____________


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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.


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                                         -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


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                                         -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.
                    _____________     ________


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                                         -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.
                 ________


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