
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-2032                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   ROBERT M. JOOST,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Cummings,* Circuit Judge.                                           _____________                                 ____________________            Thomas G. Briody for appellant.            ________________            Margaret  E. Curran,  Assistant United States  Attorney, with whom            ___________________        Sheldon Whitehouse,  United States  Attorney, and  Kenneth P.  Madden,        __________________                                 __________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                    August 7, 1996                                 ____________________                                    ____________________             *Of the Seventh Circuit, sitting by designation.               COFFIN,  Senior  Circuit  Judge.    Defendant  Robert  Joost                        ______________________          appeals  his conviction  for being  a  felon in  possession of  a          firearm and  ammunition, in violation of 18  U.S.C.   922(g).  He          raises four  issues: (1) whether  the court erred in  refusing to          give  an  entrapment  instruction,  (2)  whether   the  felon-in-          possession statute exceeds Congress's  Commerce Clause authority,          (3) whether  the court  properly relied on  three convictions  as          predicates for application of an enhanced penalty under the Armed          Career  Criminal  Act,  and  (4)  whether  the  court  erred   in          dismissing  a challenge  to the  jury  composition and  selection          procedures.               Only  the first  issue merits  extended  discussion in  this          opinion.    We  discuss  briefly our  reasons  for  affirming the          court's handling  of the second  and third issues, and  we uphold          the  court's action  on the  jury challenge  for the  reasons set          forth in an  unpublished opinion issuing simultaneously  with the          present one,  see United States  v. Joost, No. 95-2031  (1st Cir.                        ___ _____________     _____          July x, 1996).  After careful consideration, we conclude that the          evidence merited a jury instruction  on entrapment.  We therefore          reverse and remand for a new trial.                                      Entrapment                                       __________               The Record.   Whether  an instruction  on entrapment  should               __________          have been  given here presents both a close and an unusual issue.          While  most entrapment  cases  focus  on  the  question  whether,          assuming improper inducement, the defendant carried the burden of          showing an unreadiness  to commit the crime at  issue, the ruling                                         -2-          here was the  threshold one that there  had been, as a  matter of          law, no showing of improper inducement.  Moreover, the conduct of          the law enforcement  officers did not involve any single incident          that could be said to be  overbearing.  And the defendant,  while          no stranger to criminal activities,  was pursuing them in a field          unrelated to dealing in firearms when this saga begins.               This, therefore, is a  case out of the  ordinary.  Since  an          entrapment instruction was refused, we must have before us all of          the significant  evidence that  the jury heard.   While  we shall          condense as  much as we  fairly can, we recognize  that sometimes          "the devil  is in the  details" and that  too skeletal  a summary          risks  overlooking something that could have persuaded a rational          jury.  Here is our effort.               (1)  The  first  month  -  a  counterfeiting  investigation.                    ______________________________________________________          Government efforts in this case occupied a period of four months,          from  March 23  to July  24,  1994.   One Tracy  had  been caught          passing counterfeit tokens at the Foxwoods Casino in Connecticut;          he turned informant and volunteered to give information to  Rhode          Island authorities  about  the counterfeiting  activities of  his          partner, defendant.   Tracy introduced defendant to  Rhode Island          State  Police detectives DelPrete and O'Donnell, who pretended to          be petty  thieves,  one of  them  having a  cousin  strategically          employed in the cashier's cage at the casino.               Defendant had been  convicted thirty years earlier  of three          breaking and  entering felonies  and had  been imprisoned  during          most of the 1970's and 1980's.  Since his release in 1987, he had                                         -3-          held  jobs  for  only  short  periods.    He  had  commenced  his          counterfeiting  activity  in  February 1994.    His  only current          legitimate source of income, and a poor one at that,  was helping          to fabricate costume jewelry components.               His  counterfeiting enterprise had  suffered a  setback when          slot machines  at the casino  were altered so that  they rejected          the fraudulent tokens.  When  the detectives offered to pay fifty          cents for each  dollar token after they supposedly  cashed in the          tokens at the cashier's cage,  defendant was delighted.  Over the          next four months he realized  between $5,000 and $6,000 from this          activity.               (2) The  Second Month -  The Focus Changes.   The detectives                   ______________________________________          began  to extend  their  visits  to defendant,  in  the words  of          DelPrete, "because he was bringing up other things for us to do."          Defendant talked of many criminal ventures, some past, and others          future  possibilities.    They  included  a  vault  robbery  that          defendant said he  had helped plan while in  prison, a warehouse-          tractor/trailer   job   in   Pennsylvania,   and   robberies   of          supermarkets,  a  novelty  shop, a  Ground  Round  restaurant, an          armored car, a  UPS truck, a VFW hall, and a night club ("Mustang          Sally's").               The  detectives said that  they had broken  into houses, and          defendant spoke  of being a  safecracker in the 1960's  and early          1970's.  But, the  detectives acknowledged, defendant represented          that he himself did not  do armed robberies.  Defendant exhibited          considerable  criminal know-how as he critiqued various plans the                                         -4-          detectives brought forward and demonstrated how to use weapons in          a robbery.               Defendant testified that  most of the  stories he told  were          just stories, that they sprang from his imagination, his reading,          or  fiction he  had written  in  prison, that  he "talked  tough"          because he was dealing with  "tough people" and wanted to sustain          their interest in him because they were his only means to realize          income from his counterfeiting.               On  April 24,  a month after  the first  meeting, defendant,          according to the  detectives, introduced the subject  of firearms          in discussing  the possibility of  doing an armored  car robbery,          which  might  require   them  to  shoot  guards.    According  to          defendant,  the detectives had  been introduced  to him  as "guys          doing stick-ups,"  but he acknowledged  that he was the  first to          talk  about doing  a specific  robbery.   He  also mentioned  the          warehouse-tractor/trailer job possibility.               During the month following this conversation, the detectives          visited defendant on  May 10 and May 13  and obtained counterfeit          tokens.   Defendant said there  were from twenty to  thirty phone          calls during the entire four-month  period.  On May 20, defendant          once  again  mentioned the  use  of firearms  in  connection with          robbing an armored car facility.               (3) The  Third Month  - Dialogue and  Diversion.   The third                   ___________________________________________          month  of  defendant's  interactions   with  the  detectives  was          characterized  by  a   number  of  unavailing  requests   by  the          detectives that  defendant procure a  gun for use in  Fall River,                                         -5-          attempted dissuasion on the part of defendant, and numerous trips          to look over scenes of possible crimes.               On May 27 the detectives told defendant that one of them had          been harassed  by a man in Fall River.   They wanted defendant to          find them a gun so  that they could shoot out some windows in the          assailant's house.  Defendant responded  that this was not a good          idea;  bullets could be traced to firearms.   A better idea would          be to burn or blow up the person's car.  He also advocated use of          a shotgun, which  would be harder to  trace, and said he  had one          "stashed."               On June  2, O'Donnell reminded  defendant of his need  for a          gun for the Fall River matter; defendant replied that he had seen          one person, but that that person did not have a gun.  On June 11,          DelPrete,  sporting a  black eye  from  playing basketball,  told          defendant that the Fall River assailant  had given it to him  and          again asked for a firearm.  The request was repeated on  June 16,          defendant  replying that  he  had  unsuccessfully approached  two          people.  Finally, on  June 27, defendant was  told that the  Fall          River project was off; DelPrete told defendant that he had gotten          his revenge by smashing his adversary's car with a bat.               Meanwhile, defendant  and the  detectives took  a number  of          automobile  trips.   They  drove   to  Pennsylvania   to  rob   a          tractor/trailer, defendant  having brought  along some  burglar's          tools.    The operation  was  aborted  when,  as planned  by  the          detectives, they  were stopped  but not arrested  by police.   On          another occasion they followed a UPS  truck but did not stop  it.                                         -6-          On still another occasion. they drove to southern Rhode Island to          look over a  VFW hall that supposedly  had a safe to  be cracked.          And on the  night of June  29-30, they spent  hours in the  woods          near the Meehan Armored Car facility.               Defendant described the  "pattern" that he said  he followed          in almost any conversation with the detectives:                    I would first tell them the story, flush [sic] out               the details, then  I would find perhaps some fault with               it and say,  "We would have to go up there and check it               out."  Ride,  stall, talk, stall and then  get them off               on to something else.               (4) The  Fourth Month -  Denouement.  The record  reveals no                   _______________________________          action or  talk about firearms  between the end of  June and July          21.  DelPrete testified that  the detectives kept in contact with          defendant, who was still producing counterfeit coins, and that he          apparently  had only limited  resources and expected  an imminent          foreclosure on his house.               On  Thursday, July 21,  the detectives visited  defendant at          his home, where he was soldering some costume jewelry.  Defendant          said he made three dollars an hour but that his supplier, to whom          he owed money, was not going to pay  him.  O'Donnell interjected,          "By  Monday you could have -  - we owe you,  Bob.  We really do."          Then the detectives  told defendant that their casino contact was          quitting the  following month,  but that he  would make  one last          exchange of money for 2500 counterfeit coins.               The conversation then turned to the detectives' plans to rob          a nightclub on  Cape Cod, where  they expected to  get "12  grand                                         -7-          easy."  Since  they understood that the bartender  carried a gun,          they wanted defendant to obtain a firearm for them.               Then  followed  lengthy   discussion  about  the   planning.          Defendant  asked when the  detectives would accost  the bartender          and how they  would make their getaway.  He also suggested a trip          to the  nightclub.  O'Donnell  replied that this would  delay the          heist for two  more weeks.  They did  not want to wait  that long          since they needed the money.  Defendant then suggested making the          trip the following night.  O'Donnell said they would stay down on          the Cape  since the  robbery would take  place only  a day  or so          after such a trip.  They recognized that defendant  had to return          and decided to  go without him.   At this point, after  some nine          pages of transcribed  taped conversation in which  the detectives          mentioned their  need for  a gun some  six times,  defendant said          that he could probably obtain a "piece."               They then  discussed  how  to  share  the  proceeds  of  the          robbery.  They asked what  defendant thought was fair.  Defendant          said they did not have to give him anything, then said "I think I          can get  a 38, 38."   O'Donnell said that they would  give him "a          piece of  it" but  if he came  along he  would get "33"  [i.e., a          third].  Defendant replied that he  was so broke that he couldn't          pay his  bills and  would take something.   Once  again, however,          defendant suggested driving down to  look at the nightclub.  Once          again the detectives refused, saying that the bartender was "ripe          for  the picking."   After more speculation  from defendant about          what could go wrong, O'Donnell finally reaffirmed their intent to                                         -8-          do the job on  Sunday.  Defendant then  said he could "get you  a          piece."  O'Donnell wondered if defendant were "serious about it."          Defendant  at this point  spoke without any  qualification, "I'll          get you a piece."               All of the above discussion was recorded on tape.  Defendant          testified at trial that, on learning of the imminent departure of          the casino contact,  he "panicked" at the prospect  of losing the          only  income he could  get.  He  said that he wanted  to delay so          that he  could "talk  [the detectives] back  into trying  to talk          this guy  out of leaving the  casino until we could  do something          else."  He added, "I was afraid I was going to lose them and lose          the opportunity to get some more money out of them."               Defendant testified that the next  day, Friday, July 22,  he          "ran into someone and mentioned to him that [he] was  looking for          a  gun."   The "person,"  who turned  out to be  informant Tracy,          supplied defendant with  a gun.  On  the same day the  detectives          called  defendant,  who  said,  "All  set.   No  problem."    The          detectives called again on Saturday and defendant said he had the          weapon.    On  Sunday,  the  day of  the  supposed  robbery,  the          detectives went to defendant's house,  where he handed them a 25-          caliber Barretta, which he said  he had borrowed, together with a          clip and seven rounds of ammunition.               Defendant was  arrested and subsequently indicted  and tried          before a jury.                The  Court's Rulings.   At  the end  of the  case, defendant               ____________________          moved  for  an entrapment  instruction.    The court  orally  and                                         -9-          succinctly  summarized the evidence, not failing to identify five          occasions  on  which  the   government  initiated  discussion  of          firearms.   It did  not, however, make  mention of  any financial          difficulty  facing defendant or  defendant's testimony as  to his          "pattern" or strategy in dealing with the detectives.                The gist of her ruling is as follows:                    Even if I were to take into account the cumulative               effect  of the four contacts  between May 27th and June               16th  and the  fifth contact  on  July 21st,  I do  not               believe  that  those conversations,  those  promptings,               those fabrications as stated by the detectives, rise to               the level of an improper  inducement.  That is not what               the case law stands for.                    I  think I cited  [United States v.]  Gendron[, 18                                       _____________      _______               F.3d 955, 960 (1st Cir. 1994),] wherein then Judge, now               Justice Brier [sic] enumerates the types of things that               the First  Circuit considers to be  improper Government               inducement.  I  do not see the  sort of urgency.   I do               not see the  insistence.  I do not  see intimidation or               threats, even  taking all  of those  statements in  the               light most favorable to the defendant.                    In   short,   given   the   Defendant's   criminal               proclivities which  were announced by him  and admitted               to by him as being in place  even prior to the May 27th               initiation by the detectives, of discussion of guns and               given  my  finding that  the  Government's through  the               state troopers['] actions in this case do not amount to               improper or  undue influence, I do not believe that the               evidence in this  case shows anything more  [than] that               the  Government created an opportunity for Mr. Joost to               become criminally involved and to possess the weapon in               question.1               The  court  made a  second  ruling  in  response to  a  jury          request.   The jury had left the courtroom  at 2:40 p.m.  At 3:10                                        ____________________               1 In fairness,  we must acknowledge the  anomalous situation          confronting  the judge, who  had previously presided  over United                                                                     ______          States v.  Joost, No. 95-2031 (1st Cir.  July xx, 1996), in which          ______     _____          defendant consistently invoked the Fifth Amendment in refusing to          answer questions about the statements that he was now saying were          merely "stories."                                         -10-          it returned with a note saying, "Is entrapment a legal defense in          this  case?   And  if so,  could  you please  define  it?"   This          request, as the court  acknowledged, was entirely understandable.          Counsel for defendant had devoted his entire opening to picturing          the defendant as concededly a felon who had knowingly possessed a          firearm but who had been led into the crime by the  blandishments          of  the  detectives.   He  had  concluded  his remarks  with  the          statement that he would ask for an instruction on entrapment.               The court again refused to instruct on entrapment and simply          notified the jury  that that defense did not apply  in this case.          The jury finally  reported its verdict at  4:30 p.m.  In  view of          the stipulation and concessions of defendant, made in conjunction          with  his entrapment  defense strategy,  it is  a matter  of some          wonder what the jury had  to consider after receiving the court's          ruling.               Legal Discussion.   The principles governing  entitlement to               ________________          an entrapment instruction are well known.  The standard of review          is  plenary.  United States v. Rodriguez,  858 F.2d 809, 812 (1st                        _____________    _________          Cir. 1988).   The policy  behind the entrapment defense  seeks to          deter the government from such zeal in pursuing a conviction that          its efforts result in the commission of a crime that likely would          not  have occurred  if  the suspect  had  been  left to  his  own          devices.  Jacobson v. United States, 503 U.S. 540, 553-54 (1992).                    ________    _____________          The  principle  protects  both citizens  who  are  completely law          abiding and those who have violated laws but whose unreadiness to          commit  a particular  type  of crime  was  overcome by  excessive                                         -11-          governmental efforts.   The  question is  whether the  government          "induced the defendant to perform a  criminal act that he was not          predisposed to commit."  Rodriguez, 858 F.2d at 814.                                   _________               There are two  elements to the entrapment  defense: improper          government  inducement to  commit  the  offense  and  a  lack  of          predisposition  on  the  part  of  defendant to  commit  such  an          offense.  United States  v. Gendron, 18 F.3d  955, 960 (1st  Cir.                    _____________     _______          1994).  In order to be entitled to an entrapment instruction, the          defendant  has the  burden of producing  "some evidence"  on both          elements "sufficient to raise a reasonable doubt as to whether he          `was an  "unwary innocent"  rather than  an "unwary  criminal."'"          United States  v. Hernandez,  995 F.2d 307,  313 (1st  Cir. 1993)          _____________     _________          (citations omitted).                A court assessing  the sufficiency of a  defendant's showing          must be able to find more than a scintilla of evidence, more than          mere creation of an opportunity for criminal activity. See United                                                                 ___ ______          States v. Coady,  809 F.2d 119, 122  (1st Cir. 1987).   A "sting"          ______    _____          operation  is not  improper inducement if  it merely  provides an          opportunity  to commit  a crime,  but proof  of opportunity  plus          "something else"  may be adequate  to meet a  defendant's burden.          Examples found  sufficient by  courts  include threats,  forceful          solicitation and  dogged insistence,  playing upon sympathies  or          the past relationship of a war buddy, and repeated suggestions at          a  time  when  defendant  had  lost his  job  and  needed  money.          Gendron, 18 F.3d at 961.           _______                                         -12-               Moreover, while  conclusory and self-serving statements by a          defendant  are not  sufficient,  Rodriguez, 858  F.2d  at 813,  a                                           _________          defendant's  account, though self serving,  may have weight if it          "is   interlaced   with   considerable   detail  and   has   some          circumstantial  corroboration  in  the  record."    Id.  at  815.                                                              __          Indeed,  as  we   stated  in  Rodriguez,  "[W]e   recognize  that                                        _________          Rodriguez's  soliloquy was self-serving -- but realistically, how          better than  through his own  testimony can a defendant  meet his          entry-level burden?"  Id.                                __               In applying the above principles  to this case, we emphasize          that we are not considering the sufficiency of a  verdict for the          government on this  record, if an entrapment instruction had been          given, but the closer question whether a rational jury could have          found entrapment if  allowed to consider that defense.   We first          review the most relevant precedents in this circuit.               In  Rodriguez, 858 F.2d  at 811, 815-16,  a government agent                   _________          had designed a lucrative drug  deal, made the initial approach to          defendant,  and  solicited forcefully  with  "dogged insistence,"          making  four calls in  one day.   The defendant  had testified in          what the court characterized as a self-serving soliloquy, but one          in considerable detail  and with some corroboration.   We held it          error  for  the  district  court  to  have  refused  to  give  an          entrapment charge.   A year later, in United  States v. Campbell,                                                ______________    ________          874 F.2d 838,  845 (1st Cir. 1989), where the  government had set          up a drug  deal through an  informant who had been  befriended by          defendant, we  upheld the language  of the entrapment  charge and                                         -13-          rejected the  government's suggestion  that the  charge need  not          have been given.               In Gendron, 18  F.3d at 961, then Chief  Judge Breyer listed                  _______          the various  examples of  improper inducement  we have  mentioned          above, including a reference to Rodriguez's  "dogged insistence,"                                          _________          and also noted United States v. Kessee, 992 F.2d 1001, 1003  (9th                         _______________________          Cir.  1993).  In  Kessee, defendant, after  initially refusing an                            ______          informant's request  to enter  an illegal  drug deal,  yielded to          further requests after he lost two jobs and needed money for food          and rent.  Defendant had initiated several calls and had proposed          selling drugs to  the informant, and had claimed  to have engaged          in over fifty drug deals.  He testified that he  lied to obtain a          sentence reduction for cooperation, that he carried a gun because          of fear,  and that he  had tried to  impress the informant.   The          court  reversed the  trial  court,  holding  that  an  entrapment          instruction  should have been given, because only the jury should          have assessed the truth of defendant's testimony.  Id. at 1003-4.                                                             __               Most recently, in United States  v. Acosta, 67 F.3d 334, 338                                 _____________     ______          (1st Cir. 1995),  an informant, seeking to obtain  a firearm from          defendant,  engaged in  "a campaign  of  persistent calls  . .  .          before [defendant]  responded, apparently  several weeks  later."          There  were no threats, appeals to sympathy, relentless trickery,          or   extravagant rewards.  While we held the evidence withstood a          challenge to sufficiency, we observed that the facts occupied the          "middle ground between what is plainly proper and what is plainly                                         -14-          improper."   We said that if the issue  had not been submitted to          the jury, we would have reversed.                 In the  light of these  precedents, we now consider  some of          the evidence favorable to an entrapment defense.  First, there is          the extended period of  time, three months, before the  defendant          produced a firearm,  the latter two  months consisting of  active          solicitation by  the detectives  following their  requests for  a          weapon.   A  jury might  have  believed  that what  began  as  an          investigation of counterfeiting was transformed into an effort at          entrapment  once the detectives perceived that possibility.  When          defendant failed to  take the bait the first  time, they repeated          their effort with even more urgency.                Second, the jury could have found that  the detectives, with          full knowledge of the  dire financial straits in which  defendant          found himself,  deliberately created a dependency relationship in          their  continuing practice  of paying  substantial  sums for  his          counterfeit  tokens.   The lure  of continuing  payment could  be          looked on as more than the "`greed or  . . . lure of easy money'"          found unpersuasive as evidence of  entrapment in United States v.                                                           _____________          Panet-Collazo,  960 F.2d 256, 259 (1st  Cir. 1992) (citing Coady,          _____________                                              _____          809 F.2d at 121).               A third factor  that the jury could consider  as evidence of          "urgency"  and "insistence,"  contrary  to  the district  court's          reaction,   is  the  number,  frequency,  and  immediacy  of  the          detectives' contacts, involving  both personal  visits and  phone          calls.   A fourth factor,  which might well have  been considered                                         -15-          the "plus" added  to "opportunity," was the  detectives' renewal,          in a context of urgency  (the insistence on robbing the nightclub          on Cape Cod  within several days'  time), of their request  for a          firearm,   conjoined  with  the  jolting  news  of  the  imminent          departure of  their casino contact  source of funds.   In denying          the request for an entrapment  charge, the district court made no          mention of  defendant's  financial  stringency  or  the  arguable          impact of the news of this formidable threat to continued income.               A  fifth  factor  entering  our  assessment  is  defendant's          testimony  about his motive,  strategy, and "pattern"  of "stall,          talk, ride, and change the subject."  The district court included          defendant's "discussion of  guns" in her  reasons for finding  no          basis for  a  rational conclusion  of improper  inducement.   But          defendant's  story of inventing escapades, finding holes in them,          suggesting  exploratory trips,  and  inventing  excuses  for  not          producing  a  gun  is  both  detailed  and  corroborated  by  the          evidence.  It may well  be that a jury would dismiss  all of this          as a  pack of lies, but it  seems to us that this  was a task for          the jury, not the judge.               We therefore conclude that enough evidence of inducement was          introduced to meet defendant's burden  on this first prong of the          entrapment defense.  As for the absence  of predisposition prong,          much of what we have pointed to is relevant.  We must acknowledge          that defendant was certainly  predisposed to commit the  crime of          counterfeiting, but the question is whether he was predisposed to          commit the crime of procuring and possessing a firearm before the                                                                 ______                                         -16-          government intervened.   See Jacobson, 503 U.S. at 549.  The span                                   ___ ________          of  time that  elapsed before  a gun  was produced,  the excuses,          delays, and defendant's  explanation of his strategy  persuade us          that  defendant  met  his  burden  on this  prong  as  well.   He          therefore must be retried.                                          -17-                                   Remaining Issues                                   ________________               Constitutionality.  Defendant   challenges    the   district               _________________          court's  denial of his pretrial  motion to dismiss the indictment          on  the  ground  that  18  U.S.C.    922(g)  exceeded  Congress's          Commerce Clause authority under the reasoning of United States v.                                                           _____________          Lopez, 115 S. Ct. 1624  (1995).  This issue is no longer  open in          _____          this circuit.   See United  States v. Abernathy,  83 F.3d 17,  20                          ___ ______________    _________          (1st  Cir. 1996); United  States v. Bennett, 75  F.3d 40, 49 (1st                            ______________    _______          Cir. 1996).  The district court ruled correctly.               Validity of predicate convictions.  Defendant challenges the               _________________________________          court's  imposition of an enhanced thirty-year sentence under the          authority of  18 U.S.C.    924(e), claiming error in  its holding          valid  three 1964  Rhode  Island  convictions  for  breaking  and          entering.   Although discussion  of sentencing  at  this time  is          unnecessary  in   light  of   our  conclusion  that   defendant's          conviction must be vacated, we briefly respond.                 Defendant  offered his  own signed,  but unsworn,  statement          that  he did  not have  counsel when  he entered  nolo contendere          pleas on the  three state convictions.   The government, however,          introduced  docket cards maintained by the Attorney General, each          indicating, following the printed word "Counsel," the name of Leo          McGowan, now deceased, then a part-time public  defender.  Police          records also showed  representation by McGowan in  the complaints          and  warrants.   In  addition, the  face sheets  accompanying the          convictions  bore, in  pencil,  the  name  "Bevilacqua,"  then  a          prominent criminal defense lawyer.                                         -18-               The district court  found nothing in the records  to hint of          invalidity  and viewed  defendant's  statement  to be  completely          incredible.  The  court noted, as well, that  the convictions had          been entered  more than  a year after  Gideon v.  Wainwright, 372                                                 ______     __________          U.S. 335  (1963), had required  counsel in felony cases  and that          Rhode  Island  had,  for  more  than   twenty  years  before  the          convictions,  followed the practice of appointing counsel in such          cases.  We detect no  error in the court's ruling that  defendant          failed  to  produce  sufficient credible  evidence  to  rebut the          presumption   of   constitutional   validity  that   arose   from          introduction of certified copies of the convictions.   See United                                                                 ___ ______          States v. Tracy, 36 F.3d 187, 197 (1st Cir. 1994).          ______    _____               For reasons stated, the judgment is reversed and the case is               ____________________________________________________________          remanded for a new trial.          _________________________                                         -19-
