United States v. Blais

Opinion

USCA1 Opinion

[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.



                                         -5-



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
                                                                    _______


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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



                                         -12-



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



                                         -13-



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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