
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-
