United States v. Collins

Opinion

USCA1 Opinion

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


-2-



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."


-3-



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


-4-



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. 



                                         -5-



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
                                                _____


-6-



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). 
                        _____ ______



                                         -7-



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


-8-



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.


-9-



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.
                                        ________


-10-
                                         -10-