                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 12-1431

                             UNITED STATES,

                                Appellee,

                                     v.

                              KIRK LASSEND,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. F. Dennis Saylor IV, U.S. District Judge]



                                  Before

                       Lynch, Chief Judge,
                Stahl and Howard, Circuit Judges.


     Katherine C. Essington on brief for appellant.
     Carmen M. Ortiz, United States Attorney, and Mark T.
Quinlivan, Assistant United States Attorney, on brief for appellee.



                           October 23, 2013
            Per Curiam.    A jury convicted the defendant-appellant

Kirk Lassend of being a felon in possession of a firearm and

ammunition.    18 U.S.C. § 922(g)(1).            The facts may be briefly

summarized.    A resident of an apartment building in Fitchburg,

Massachusetts called 911 after Lassend, carrying a gun, knocked on

her door looking for someone and then left once his effort proved

unfruitful.    Lassend was next seen with the gun in the street,

where he discharged the weapon into the air. The police arrived on

site and arrested Lassend, who had ammunition on him and whose

hands bore lacerations.       The police located the gun in a common

area of an apartment building and also later discovered ammunition

in the defendant's apartment.       Eyewitness testimony was among the

evidence presented at trial.

            Lassend appeals his convictions on three bases: that the

district   court   erred   in     failing   to    delay    sua   sponte    jury

empanelment due to his medical condition, that the court also erred

in its jury instruction on police investigation techniques, and,

finally, that the court erred in precluding him from making trial

use   of   evidence   about   a    testifying     police   officer’s      prior

malfeasance.    He acknowledges that plain error review applies to

the first two claims; the standard of review as to the third issue

is disputed.    All three claims fail.

            Before jury empanelment began, defense counsel informed

the trial judge that the defendant was experiencing considerable


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pain from recent surgery, that this discomfort was compounded by

his chronic psoriasis, and that he had not received the necessary

medication to provide him with relief.        Though assured by defense

counsel that the defendant was able to understand the court

proceedings, the trial judge conducted an individual colloquy with

Lassend, exploring among other topics his physical symptoms and his

ability to think clearly during the empanelment process which was

expected to last from two to four hours.       Both defense counsel and

the defendant sought to move forward in court that day, and,

satisfied by the individual colloquy, the court decided to proceed

with empanelment.    The court nonetheless granted Lassend's request

to delay the start of trial so that he could seek proper medication

later that same day.          After examining the record, we observe

nothing amiss in this procedure.       See United States v. Maryea, 704

F.3d 55, 72 (1st Cir. 2013)(affirming decision not to re-evaluate

an individual's competency where a record colloquy "demonstrated

her   ability   to   follow   the   court's   line   of   questioning,   to

understand said questioning, to converse and interact with her

attorney, and to provide coherent responses regarding her rights");

United States v. Savinon-Acosta, 232 F.3d 265, 268-69 (1st Cir.

2000) ("[P]ractical judgments can usually be made.            Courts have

commonly relied on the defendant's own assurance (and assurances

from counsel) that the defendant's mind is clear.            Further, the




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defendant's own performance in the course of a colloquy may

confirm, or occasionally undermine, his assurances.")

          As for Lassend's second claim, we note that his trial

defense was premised at least in part on a purported faulty police

investigation. For example, the defense targeted law enforcement's

decision not to have particular items, such as Lassend's clothing

and swabs taken from the gun, tested for gun residue and for DNA.

The court discussed with counsel language options for a jury

instruction pertaining to law enforcement techniques.   Ultimately,

the court provided a jury instruction on the matter, to which the

defendant did not object.    That instruction did not -- as Lassend

contends -- communicate to the jury that it was foreclosed from

considering the adequacy of the police investigation when deciding

whether the government had proven its case beyond a reasonable

doubt.   Cf. Commonwealth v. Bowden, 399 N.E.2d 482, 491 (Mass.

1980) (finding reversible error where instructions removed from

jury's consideration the failure of the authorities to conduct

certain tests or produce certain evidence).      Rather, the court

informed the jury that it could draw reasonable inferences from the

fact that certain tests were inconclusive or not conducted, or that

certain techniques were not used, as well as that law enforcement

is not legally required to use any specific or all possible tests

or techniques in order to prove its case.      We discern no plain

error in this instruction.    See United States v. Brown, 669 F.3d


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10, 29 (1st Cir. 2012) (explaining plain error review of jury

instructions); see, e.g., United States v. Cota-Meza, 367 F.3d

1218, 1223 (10th Cir. 2004); United States v. Saldarriaga, 204 F.3d

50, 52-53 (2d Cir. 2000); United States v. Mason, 954 F.2d 219, 222

(4th Cir. 1992).

             As his final claim, Lassend contends that the district

court precluded him from making use of, through cross examination

or otherwise, a past disciplinary infraction of a testifying police

officer.   As far as we can tell, the court issued no such ruling.

Rather, the court deemed the matter moot once defense counsel

expressly indicated an intent not to pursue it. In any event, even

if the issue were preserved, the defendant's appellate argument

would have no traction, because the district court would not have

abused   its    discretion       in   foreclosing   use   of   the    personnel

information under Federal Rule of Evidence 403.            See United States

v. Anthony, 545 F.3d 60, 66 (1st Cir. 2008) ("We accord district

courts considerable latitude in this exercise and review the

exclusion of evidence under Rule 403 for abuse of discretion.").

The   record   justifies     a    conclusion   that   a   single     infraction

occurring more than forty years ago carried little probative value

with respect to witness credibility, and that its admission would

lead to unfair prejudice, undue delay, and waste of judicial

resources.

             For the reasons enunciated, the convictions are affirmed.



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