United States v. Friel

• Court: Court of Appeals for the First Circuit
• Decided: August 17, 1993
• Docket: 92-2418
• Status: Published

Opinion

USCA1 Opinion

August 17, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 92-2418 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   DENNIS E. FRIEL,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Selya and Stahl, Circuit Judges.
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                                 ____________________

            Dennis E. Friel on brief pro se.
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            Richard  S.  Cohen, United  States  Attorney,  David  R.  Collins,
            __________________                             __________________
        Assistant  United  States Attorney,  and  F.  Mark Terison,  Assistant
                                                  ________________
        United States Attorney, on brief for appellee.

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Per Curiam.  Appellant Dennis E. Friel was indicted
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            by  a federal  grand jury  with two  counts of  possession of

            firearms by a person convicted of a felony in violation of 18

            U.S.C.       922(g)(1)  and   924(a)(2).1     Appellant   was

            convicted, after a jury trial, on both counts.  He raises six

            issues  on appeal, all of  which we reject  for the following

            reasons:

                      1.  Appellant argues that his conduct does not come

            within language of    922(g)(1) requiring that the possession

            of the firearms be "in or affecting commerce."  At trial, the

            government's  expert testified  that one  of the  weapons had

            been manufactured in Massachusetts in  1987 and the other had

            been  manufactured  in  Italy  between 1951  and  1968;  both

            weapons,  according   to  this   witness,  had   traveled  in

            interstate commerce to arrive in Maine.

                      In  United States  v.  Gillies, 851  F.2d 492  (1st
                          _____________      _______

            Cir.), cert.  denied,  488 U.S.  857 (1988),  we addressed  a
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            similar argument.   The defendant in Gillies had possessed in
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            Massachusetts, in 1986,  a gun that  had, in 1977,  travelled

            from  Brazil to Florida.   The defendant argued  that the in-

            state  possession of a weapon  that had, at  some time in the

            past, arrived from out  of state, did not meet  the affecting

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            1.  Section 922(g)(1)  provides in  relevant part  that "[i]t
            shall be unlawful for any person . . . who has been convicted
            in any court of . . . a crime punishable  by imprisonment for
            a  term exceeding  one year  . .  . to  . .  . possess  in or
            affecting commerce, any firearm. . . ."

commerce requirement.   We rejected this  interpretation of  

            922(g)(1).  Id. at 493.
                        ___

                      We held that  "possession of a gun  that did travel
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            interstate   before  the  felon  possessed  it"  satisfied   

            922(g)(1).   Id.  at 494.   That  is, the  affecting commerce
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            language includes  "past or present effects."   Id. (emphasis
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            added).   In so holding,  we relied on  Scarborough v. United
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            States, 431 U.S. 563 (1977).  In  considering the predecessor
            ______

            to    922(g)(1), the Supreme Court held that "Congress sought

            to reach  possessions broadly,  with little concern  for when

            the nexus  with commerce occurred."   Id.  at 577.   We cited
                                                  ___

            Scarborough  for the  conclusion  that "as  long  as the  gun
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            previously had travelled in  interstate commerce," a felon in
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            possession of it violated the statute.  851 F.2d at 494.

                      2.    Appellant next  asserts  that  the government

            failed  to  prove  not  only that  he  "knowingly"  possessed

            firearms, but that he "knowingly"  violated the law in  doing

            so.   Appellant  bases his  argument on  the language  in the

            indictment  which states that appellant "knowingly possessed,

            in  and affecting commerce,  a firearm . .  . in violation of

            Title 18.  . . ."   We have  rejected this type  of argument,

            stating  that   "[t]his  court,  and  every   court  to  have

            considered the issue,  has held that the  government need not

            prove  the  defendant  knew  he  was  violating  the  federal

            firearms law nor would `ignorance of the law' be a defense in

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such  a prosecution."  United States v. Ramos, 961 F.2d 1003,
                                   _____________    _____

            1005  (1st Cir.) (citing cases), cert. denied, 113 S. Ct. 364
                                             ____________

            (1992).

                      3.  Appellant argues  generally that   922(g)(1) is

            unconstitutional.  Specifically, he  asserts that the  limits

            imposed by    922(g)(1)  violate the constitutional  right to

            bear  arms.   The  Supreme Court  plainly  has held  that the

            Second  Amendment  --   "A  well  regulated  Militia,   being

            necessary  to  the security  of a  free  State, the  right of

            people  to keep  and bear  Arms, shall  not be  infringed" --

            applies only to firearms having a "reasonable relationship to

            the preservation or efficiency of a well regulated militia. .

            . ."  United States v. Miller, 307 U.S. 174,  178 (1939); see
                  _____________    ______                             ___

            also  Lewis  v. United  States, 445  U.S.  55, 65  n.8 (1980)
            ____  _____     ______________

            (legislative  restrictions  on  the  ability of  a  felon  to

            possess a  firearm do  not "trench upon  any constitutionally

            protected liberties").

                      Appellant's  reliance on  the  Constitution of  the

            State  of Maine is unavailing.  See United States v. Minnick,
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            949 F.2d 8, 10-11 (1st Cir. 1991) (Supremacy Clause of United

            States Constitution prevents reliance  on the qualified right

            to bear arms contained in the New Hampshire Constitution as a

            defense  to    922(g)(1)),  cert.  denied,  112 S.  Ct.  1698
                                        _____________

            (1992).   In  any event,  as the  government points  out, the

            Maine Constitution does not prohibit the state from making it

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a crime  for a convicted  felon to  possess a  firearm.   See
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            State  v. Brown, 571 A.2d  816, 817 (Me.  1990) ("no absolute
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            right" to bear arms exists under Maine Constitution).

                      4.  The  district court denied  appellant's motion,

            made under  Fed. R. Crim.  P. 6(e)(3)(C)(i), to  disclose all

            grand jury  proceedings leading up  to his indictment.   This

            rule provides that disclosure of such proceedings may be made

            "when  so  directed  by  a  court  preliminarily   to  or  in

            connection with  a judicial proceeding."   In support  of his

            motion,  appellant stated  that he  felt "strongly"  that the

            prosecution  had  abused   the  grand  jury   proceedings  in

            procuring the  indictment, that  the prosecutor had  used the

            grand  jury  to prepare  his  case, and  that  his publicized

            religious views and  long hair may have  prejudiced the grand

            jury  against him.  He also requested the grand jury material

            so that he could make sure that the grand jury had understood

            their  function and had not  been merely a  "rubber stamp" of

            the  prosecutor;  he also  sought  to  ascertain whether  the

            prosecutor had disclosed any grand jury material to the local

            authorities.  Finally, he  cited to his right to  inspect the

            grand jury list to challenge the jury selection process.

                      "The  Supreme Court  repeatedly has  recognized the

            importance of secrecy in  grand jury proceedings, even after,

            as  in this case, the grand jury has concluded its function."

            United  States  v. McMahon,  938  F.2d 1501,  1504  (1st Cir.
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1991).  Thus,  to be  entitled to grand  jury material  under

            Rule 6(e),  appellant must  show a "particularized  need" for

            the  material requested,  see Pittsburgh  Plate Glass  Co. v.
                                      ___ ____________________________

            United  States, 360  U.S.  395,  399  (1959), or  that  "some
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            possible  grounds  for dismissal  would  be  produced."   See
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            United  States v.  Llaca  Orbiz, 513  F.2d  816, 818-19  (1st
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            Cir.), cert. denied, 423 U.S. 861 (1975).  Further, appellant
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            bears  the burden of showing that "the need for disclosure is

            greater than  the need for  continued secrecy and  that [the]

            request is structured to cover only material so needed."  See
                                                                      ___

            Douglas  Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222
            ________________    ______________________

            (1979) (footnote omitted).

                      The  district  court  determined  that  appellant's

            request, based  upon his  strong feelings,  did not  meet the

            above   standard.     A   district  court   has  "substantial

            discretion" to decide whether to release grand jury material.

            Id. at  223.  We do  not think the district  court abused its
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            discretion  in this  case.   First,  appellant's request  was

            based  only  upon his  desire  to review  the  proceedings to
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            search  for impropriety.  This is insufficient.  See Walsh v.
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            United  States, 371  F.2d 436,  437 (1st  Cir.) (per  curiam)
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            (where  defendant  "merely  asked  [for]  an  opportunity  to

            examine  the  [grand  jury]  records  without specifying  any

            reason," no  abuse of  discretion in denying  request), cert.
                                                                    _____

            denied, 387 U.S. 947  (1967).  Further, appellant's "reasons"
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do not rise to  the level of stating  "particularized" needs.

            Rather,  his statements are conclusory in nature and he cites

            to  no evidence of a specific nature to support his requests;

            thus,  the "presumption  of regularity"  remains.   See Llaca
                                                                ___ _____

            Orbiz,  513  F.2d  at   819  (where  no  evidentiary  showing
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            proffered concerning  allegation that  secrecy of  grand jury

            had been breached, grand  jury proceedings presumed regular).

            Finally,  as  for  appellant's  challenge  to  the  selection

            process, it  does not contain any  indication concerning what

            rights  appellant  believes the  selection  process violated.

            See id. at 819 n.5.
            ___ ___

                      5.    Appellant  was  arrested  at  his  daughter's

            apartment  after a  warrant for  his arrest  had issued.   He

            moved,  in the  trial court,  to suppress  his arrest  on the

            ground  that  federal  agents  had   entered  his  daughter's

            apartment,  despite her objection,  without a  search warrant

            and without adequate notice.   The district court denied  the

            suppression   motion,  in  part,  because  appellant  had  no

            "constitutionally protected interest" to assert.  We agree.

                      The Supreme  Court has  held that it  is proper  to

            allow  "only defendants  whose Fourth  Amendment rights  have

            been  violated  to  benefit  from the  [exclusionary]  rule's

            protection."    See Rakas  v.  Illinois,  439 U.S.  128,  134
                            ___ _____      ________

            (1978).   That  is, a defendant  who claims that  a search of

            another's premises  was illegal  has not  had his own  Fourth
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Amendment  rights  violated.   Id.   To meet  this "standing"
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            requirement, appellant  "ha[s] the  burden of showing  . .  .

            that  he had  a  reasonable expectation  of  privacy" in  the

            premises searched.   See United States  v. Aguirre, 839  F.2d
                                 ___ _____________     _______

            854,  859 (1st  Cir. 1988).   Such  a showing is  made where,

            among other things, a defendant presents evidence that  he or

            she lived in the  premises searched, kept personal belongings

            there  or had the ability to restrict access to the premises.

            Id.
            ___

                      Appellant  has not  alleged that  any of  the above

            factors were  present.  He only  argued below, as he  does on

            appeal,  the merits of the Fourth Amendment claim -- that the
                         ______

            search was illegal.   However, under  Rakas and Aguirre,  the
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            district court  correctly refrained from reaching  the merits

            of the challenged search  where appellant failed to establish

            a  privacy interest in his  daughter's apartment.  See Rakas,
                                                               ___ _____

            439 U.S. at 150; Aguirre, 839 F.2d at 859.
                             _______

                      6.   Finally,  appellant claims that,  before trial

            started,  the  district  court denied  him  the  right to  be

            presumed innocent.  Appellant alleges that this occurred when

            the  court asked the jury  the following question:   "Has any

            juror already reached an opinion as to the guilt or innocence

            of  this  defendant?"   According  to  appellant, each  juror

            answered "no"  by the  shaking of  heads or by  silence.   He

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argues that by answering "no," the  jury was expressing their

            opinion that they did not, in fact, presume him innocent.

                      We reject  this tortured interpretation.   Plainly,

            by answering in the negative, the jurors were indicating that

            they had not formed any opinions concerning appellant's guilt
                     ___

            or innocence.  In any event, just  prior to the question, the

            court gave the following instruction:

                           I  will instruct you  that under the
                      [C]onstitution  and  laws  of the  United
                      States, every defendant is presumed to be
                      innocent, and  that your duty as  a juror
                      will be to return a verdict of not guilty
                      unless   you   are  convinced   beyond  a
                      reasonable doubt on the evidence  and law
                      admitted in this case that the government
                      has proved that the defendant is guilty.

            It is  hard to perceive how the court could have made plainer

            the presumption of innocence.

                      For   the  foregoing   reasons,  the   judgment  of

            conviction  is affirmed.   Appellant's  motion to  strike the
                           ________

            government's brief is denied.
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