          United States Court of Appeals
                       For the First Circuit


No. 06-2258

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

                        ANTOIN QUARLES COMBS,
                    a/k/a ANTOINE COMBS-QUARLES,
                         a/k/a ANTOINE COMBS,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Mark L. Wolf, U.S. District Judge]


                               Before

          Torruella, Boudin and Howard, Circuit Judges.



     Douglas J. Beaton for appellant.
     Sandra S. Bower, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.



                         February 11, 2009
            HOWARD, Circuit Judge. A jury found Antoin Quarles Combs

guilty of being a felon in possession of a firearm and ammunition,

in violation of 18 U.S.C. § 922(g).                 He was sentenced to 240

months'    imprisonment.      In    this    appeal,    Combs    challenges      his

conviction on two grounds:         first, that the trial court improperly

declined to give his proposed jury instruction regarding witness

intimidation; and second, that the government failed to offer

sufficient evidence that the firearm and ammunition had traveled in

interstate commerce.       We reject both arguments and affirm.

                                      I.

            The events leading up to Combs's arrest may be described

briefly.     Combs   was   arrested     after   a     motor    vehicle   stop    in

Dorchester, Massachusetts in 2005.            Boston Police Officers John

Conway and Dean Bickerton stopped the car in which Combs and two

others (Somia Hicks and Tanisha Montgomery) were riding, citing

suspicious activity. The officers testified that, after asking the

driver Montgomery for her license and registration, they noticed a

smell of marijuana coming from the car.             They asked Combs to step

out of the car, which he did.

            Here the narratives offered by the witnesses diverge

slightly.    The officers testified that they saw that Combs was

carrying a gun.      Hicks, testifying as a defense witness, stated

that she did not see a gun belonging to Combs at any point.                     The

other differences between Hicks's testimony and the testimony of


                                      -2-
the   officers   about    the    events    of    that   evening   amount   to   a

disagreement about the specific words exchanged between Combs and

the   officers   before   and     during    an   ensuing    struggle.      It   is

undisputed that there was an altercation between Combs and the

officers, and that they struck him with their firearms in an

attempt to subdue him.          At the conclusion of the struggle, Combs

was handcuffed and arrested. The officers recovered from the scene

a .38 caliber Smith & Wesson revolver and five rounds of .38

caliber Remington Peters ammunition.

           In due course, Combs was indicted for being a felon in

possession of a firearm and ammunition.            Four days prior to trial,

Lisa Rudnicki, an agent of the bureau of Alcohol, Tobacco, Firearms

and Explosives (ATF), visited Hicks in her home.               At trial, Hicks

testified that Rudnicki had asked her a series of questions about

the events surrounding the arrest.           In response to her answers to

those questions, Hicks testified, Rudnicki called her a liar and

told her that she could be charged with perjury and sentenced to

ten years in jail.1       Hicks did not testify about either of these

statements made by Rudnicki.

           This exchange took place at Hicks's home, in front of two

of Hicks's children, ages three and fifteen.               Hicks had her three-


      1
      In a sidebar conversation with counsel, the trial judge noted
that Rudnicki also suggested to Hicks that Hicks's version of the
events contradicted that of another witness and, in addition, that
Rudnicki told Hicks that Combs had at one point planned to plead
guilty.

                                      -3-
year-old child on her lap during the encounter.                Hicks testified

that Rudnicki suggested that she should not "be with" anyone who

had Combs's record, asked her what her children would do without

her, and advised her to put her family first.            Hicks testified that

after this conversation, she was very upset and cried for about

thirty or forty-five minutes.       She said that she felt threatened

and   that   she   believed   Rudnicki    was   trying    to   stop   her   from

testifying in this case. Hicks did, nevertheless, testify at trial

on Combs's behalf both about the arrest and the visit by Rudnicki.

             Asserting that Rudnicki's visit with Hicks created an

issue of witness intimidation, Combs's counsel requested a jury

instruction that would permit a finding of reasonable doubt based

on the government's allegedly improper conduct.                  The proposed

instruction was:

             If you find that ATF Special Agent Lisa Rudnicki
             attempted to prevent Somia Hicks from testifying by
             threats or intimidation, you may draw an inference
             adverse to the prosecution. Such an adverse inference
             may be sufficient by itself to raise a reasonable doubt
             as to the defendant's guilt in this case.

The trial judge declined to give the requested instruction, because

even though Rudnicki's conduct may have been improper, Hicks did in

fact testify.2     The court observed that, "[m]aybe something should



      2
      The court stated that although Rudnicki's conduct was "quite
close to the line, if not over the line" of impropriety, he did not
have to "reach a decision as to whether [the statements made to
Hicks] were improper, whether they went over the line because the
witness did[] testify . . ."

                                    -4-
be done with regard to the ATF . . . but I'm not inclined to give

an instruction to sanction possible misconduct that I haven't found

to be misconduct in the circumstances where I don't perceive that

the integrity of the trial has been injured."

           During closing argument, defense counsel mentioned the

alleged intimidation by Rudnicki, but he did not object to the

instructions    given   to    the   jury,    even   though    the   trial   judge

expressly invited objections at the conclusion of his charge to the

jury.   Combs was convicted of being a felon in possession of a

firearm and ammunition in violation of 18 U.S.C. § 922(g).

           Combs makes two arguments on appeal.              First, he contends

that the trial court improperly declined to give his proposed jury

instruction on witness intimidation in response to Rudnicki's

conduct.   Second, he argues that the government did not offer

sufficient evidence that the firearm and ammunition had traveled in

interstate commerce, as required by 18 U.S.C. § 922(g).

                                      II.

                             A.   Jury Instruction

           In   order   to    properly      preserve   a   challenge   to    jury

instructions, a defendant must object to the instructions after the

judge has charged the jury. See United States v. Munoz-Franco, 487

F.3d 25, 64 n. 40 (1st Cir. 2007); see also Fed. R. Crim. P. 30(d).

When a defendant fails to object, we review the charge for plain

error only.     Munoz-Franco, 487 F.3d at 64 n. 40; see also Fed. R.


                                      -5-
Crim. P. 52(b).        Here Combs did not object despite an express

invitation by the trial judge, and we accordingly apply the plain

error test.        That test requires that an appellant demonstrate:

"(1) that an error occurred; (2) which was clear or obvious; and

which not only; (3) affected the defendant's substantial rights,

but also; (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings."          United States v. Moran, 393

F.3d 1, 13 (1st Cir. 2004) (citation omitted).                  See also United

States v. Olano, 507 U.S. 725 (1993).

             Combs argues that Rudnicki's conduct violated his due

process rights as her actions interfered with Combs's right to

present    his   defense   witnesses   freely,     and   that     the   proposed

instruction was an "appropriate remedy".           See Washington v. Texas,

388 U.S. 14, 19 (1967) (holding that the Sixth Amendment right to

present    one's    own   witnesses   as    part   of   one's    defense    is   a

"fundamental element of due process").

            The trial judge, although troubled by the agent's alleged

statements, declined to make a finding of misconduct.               More to the

point, the court determined that no prejudice resulted from the

conduct.   We review that ruling for an abuse of discretion,               United

States v. Jahagirdar, 466 F.3d 149, 156 (1st Cir. 2006), but in

fact there is no evidence whatever of actual prejudice.                       The

witness testified in favor of the defendant; and nothing indicates




                                      -6-
that the testimony was hedged or that even more favorable testimony

was suppressed.

          Hicks testified about both her recollection of the events

of the arrest, and the interaction with Rudnicki.      Although Combs

characterizes Hicks's trial testimony as "halting[]" and suggests

abstractly that it is impossible to know how Hicks might have

testified absent Rudnicki's conduct, he does not argue that the

substance of her testimony can be shown to have been affected by

the alleged intimidation.

              "There can be no violation of the defense's right to

present evidence . . . unless some contested act or omission (1)

can be attributed to the sovereign and (2) causes the loss or

erosion of testimony which is both (3) material to the case and (4)

favorable to the accused."     United States v. Hoffman, 832 F.2d

1299, 1303 (1st Cir. 1987).          This accords with the ordinary

requirement     that   a   claimed     violation   cause   prejudice.3


     3
      There is some authority in other circuits that government
intimidation of a defense witness, even absent a showing of
prejudice, can nevertheless amount to a due process violation. See
United States v. Morrison, 535 F.2d 223, 228 (3rd Cir. 1976);
United States v. Hammond, 598 F.2d 1008, 1013 (5th Cir. 1979).
Those opinions predate United States v. Hasting, 461 U.S. 499
(1983), where the Supreme Court held that a reviewing court must
ignore harmless errors, including most constitutional violations.
461 U.S. at 509. The court did distinguish three specific rights
as rights that, when violated, can never be treated as harmless
error: respecting counsel, an impartial judge and freedom from
coerced confession. Id. at 508 n.6. None of those rights are at
issue here.    Later opinions have acknowledged that Hammond's
analysis is no longer viable in the wake of Hasting. See, e.g.,
Peeler v. Wyrick, 734 F.2d 378, 381 (8th Cir. 1984).

                                 -7-
Accordingly, under the test framed by Hoffman, there was no due

process violation.

            The requested instruction also presents a separate issue.

Even though Hicks's testimony was available and employed, the

instruction sought could conceivably be helpful to the defense and

could rest on a theory of its own independent of a due process

violation.       An effort to tamper with evidence by a defendant can

sometimes justify an inference of guilt, as can flight, deliberate

provision of a false alibi, and similar conduct.                 See, e.g.,

United States v. Ayala-Tapia, 520 F.3d 66, 69 (1st Cir. 2008)

(inference from deliberately false alibi); United States v. Otero-

Mendez, 273 F.3d 46, 53 (1st Cir. 2001) (inference from defendant's

flight).

            In such cases, an adverse inference is permitted because

the conduct is deemed relevant to the defendant's consciousness of

guilt, see, e.g., United States v. Rosario-Diaz, 202 F.3d 54, 70

(1st Cir. 2000), which may weigh in favor of an inference that the

defendant is in fact guilty.         There is however, no direct analogue

to "consciousness of guilt" when an individual government agent is

accused of intimidating the witness; a concern arises if evidence

is thereby lost, see Brady v. Maryland, 373 U.S. 83 (1963), but in

this case evidence was not lost.

            The defendant does not point us to any federal decision

calling    for    an   instruction   that,   where   the   evidence   is   not


                                      -8-
affected, the jury may draw an adverse inference against the

government.         Combs suggests that the requested instruction was

based on language from two earlier cases.                   See Merced v. McGrath,

2004 U.S. Dist. LEXIS 2107, at *32 (N.D. Cal., Feb. 10, 2004), and

People v. Zamora, 615 P.2d 1361, 1370 (Cal. 1980).                         Both cases,

however, involved issues of state and not federal law (with the

former being in federal court on a habeas claim), and in neither

case did the court hold that such an instruction was required.

                 Without laying down blanket rules, it is enough here that

there was no clear error in refusing the instruction.                           Like the

district judge, we have no reason to decide whether the questioning

went       too   far.    If   we    accept    Hicks's      version,   it   is    not    an

especially        attractive       picture,    but   law    enforcement     is    not    a

delicate business.            And to make a complete assessment, the full

context and a range of specific circumstances would need to be

developed.         See generally Webb v. Texas, 409 U.S. 95, 98 (1972)

(per curiam).4          Where, as here, the issue involves a particular

fact pattern not likely to be repeated in just the same form, an

assessment is all the more unnecessary.




       4
      See also United States v. Vega-Figureroa, 234 F.3d 744, 752
(1st Cir. 2000); United States v. Jackson, 935 F.2d 832, 847 (7th
Cir. 1991); United States v. Morrison, 535 F.2d 223, 228 (3d Cir.
1976); United States v. Thomas, 488 F.2d 334, 336 (6th Cir. 1973);
United States v. Smith, 478 F.2d 976, 978-79 (D.C. Cir. 1973).

                                             -9-
                     B.   Firearm and Ammunition

          Combs challenges the sufficiency of the evidence for one

element of the underlying offense: the requirement under 18 U.S.C.

§ 922(g) that the firearm or the ammunition be "in or affecting

commerce."5   We review sufficiency challenges to determine whether

the evidence presented at trial, together with all reasonable

inferences and viewed in the light most favorable to the verdict,

would allow a rational jury to establish the defendant's guilt

beyond a reasonable doubt.    See United States v. Lopez-Lopez, 282

F.3d 1, 19 (1st Cir. 2002).

          Combs's arrest and the recovery of the firearm and

ammunition took place in Dorchester, Massachusetts.6   We conclude

that the jury reasonably determined there was sufficient evidence

that the ammunition was "in or affecting commerce."        In this

regard, we note that the felon in possession statute applies

independently to the possession of the firearm or the ammunition.

If either the firearm or the ammunition was "in or affecting


     5
      That statute provides in relevant part:
     It shall be unlawful for any person --
     (1) who has been convicted in any court of, a crime
     punishable by imprisonment for a term exceeding one year;
     . . .
     to ship or transport in interstate or foreign commerce, or
     possess in or affecting commerce, any firearm or ammunition;
     or to receive any firearm or ammunition which has been shipped
     or transported in interstate or foreign commerce.
     6
      At trial, Combs suggested that the gun was planted on him.
On appeal, however, he does not challenge the finding that he was
in possession of the gun and the ammunition.

                                 -10-
commerce," that is sufficient to meet the requirements of 18 U.S.C.

§ 922(g).      Although there also may well have been sufficient

evidence that the firearm was "in or affecting commerce," we need

not reach this question here.7

              In Scarborough v. United States, 431 U.S. 563, 572

(1977), the Supreme Court addressed the "in or affecting commerce"

requirement of a precursor to the current felon in possession

statute.      The    Court   established     a   "minimal   nexus"       standard,

requiring    proof    only    of   interstate    travel     of    a    firearm   or

ammunition.    Id.    In United States v. Wilkerson, 411 F.3d 1, 9-10

(1st Cir. 2005), we applied Scarborough and held that a firearm or

ammunition is "in or affecting commerce" for the purposes of 18

U.S.C. § 922(g) if it has "traveled at some time" in interstate

commerce.    We have also said that the standard requires a showing

that a firearm or ammunition has "been transported across State

lines."    United States v. Weems, 322 F.3d 18, 25 (1st Cir. 2003),

cert. denied, 540 U.S. 892 (2003).

            Combs would have us interpret the statute differently.

He points to Jones v. United States, 529 U.S. 848, 855 (2000), and

argues that the government must show that a firearm or ammunition

had more than "merely a passive, passing, or past connection to

commerce."      Jones,       involving   a   federal      arson       statute,   is


     7
      The government introduced evidence that the firearm was
manufactured by Smith & Wesson Corporation in Springfield,
Massachusetts and was shipped to New York in January, 1977.

                                     -11-
inapplicable here.        Combs's exact argument has been before us in

Wilkerson and in Weems, and we rejected it on those occasions as we

do here.8    The language linking the regulated conduct to commerce

in the statute in Jones differs from the language of 18 U.S.C. §

922(g),     and   Jones   does   not   disrupt   the   Court's   holding   in

Scarborough.

             The government presented uncontroverted evidence that

there are no commercial manufacturers of ammunition in the state of

Massachusetts, as well as uncontroverted evidence that Remington

Peters, the manufacturer of the recovered ammunition, has two

manufacturing facilities:        one in Connecticut and one in Arkansas.

Thus, ammunition recovered in Dorchester, Massachusetts must have

crossed state lines to get there.

             In conclusion, (1) there was no error in the district

court's refusal to issue Combs's requested instruction; and (2)

there was sufficient evidence for a jury to conclude that either

the firearm or the ammunition were "in or affecting commerce" as

required by 18 U.S.C. § 922(g).

             Affirmed.



     8
      Other circuits have treated this issue identically, holding
the nexus to interstate commerce to be satisfied under 18 U.S.C. §
922(g) if the firearm or ammunition has "traveled at some time" in
interstate commerce. See United States v. Sawyers, 409 F.3d 732,
736 (6th Cir. 2005); see also United States v. Darrington, 351 F.3d
632, 634 (5th Cir. 2003); United States v. Gaines, 295 F.3d 293,
302 (2d Cir. 2002); United States v. Gallimore, 247 F.3d 134, 138
(4th Cir. 2001).

                                       -12-
