
USCA1 Opinion

	




               [This opinion is For Pubication as of October 21, 1996.]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1093                                    UNITED STATES,                                      Appellee,                                          v.                                  RAYMOND J. BLAIS,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                _____________________               John J. Barter, by Appointment of the Court, for appellant.               ______________               Margaret E. Curran, Assistant  United States Attorney,  with               __________________          whom Sheldon Whitehouse, United States Attorney, and Stephanie S.               __________________                              ____________          Browne,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                   August 28, 1996                                 ____________________                    TORRUELLA, Chief Judge.  Defendant-appellant Raymond J.                    TORRUELLA, Chief Judge.                               ___________          Blais  ("Blais")  appeals  his   conviction  under  18  U.S.C.             922(g)(1), as well as his  resulting sentence of 235 months in  a          federal corrections facility plus five years' supervised release.          We affirm the judgment of the district court in both regards.                                    I. BACKGROUND                                    I. BACKGROUND                                       __________                    On February 3, 1994,  Blais was arrested in Providence,          Rhode Island, after Providence police discovered a firearm in his          apartment.  On May 27, 1994, a federal grand jury returned a one-          count indictment charging Blais with being a felon in  possession          of a firearm, in violation of 18 U.S.C.   922(g)(1).  On June 29,          1994,  Blais  filed a  motion to  suppress,  which was  denied on          October 12, 1994.                    Viewed  in the  light  most favorable  to the  verdict,          United  States v. Bartelho, 71 F.3d 436, 438 (1st Cir. 1995), the          ______________    ________          following facts could have been found by a reasonable jury.  O  n          February  3,  1994, Providence  Police  Reserve  Officers Timothy          Dupuis  ("Officer Dupuis") and  David Paolino ("Officer Paolino")          went to 160 Benedict Street, a Providence Housing Authority high-          rise  apartment   building,  in  response   to  a  report   of  a          disturbance.    The  complainant,  Geraldine  McGill  ("McGill"),          alleged that  Blais had  threatened her verbally  and physically,          and  that he possessed a  firearm.  In  response, Officer Dupuis,          Officer  Paolino and  a security  guard, Alan  Rivera ("Rivera"),          headed for Blais's  apartment.   Officer Dupuis  walked down  the          hallway  first, and he spotted  a man, whom  he later learned was                                         -2-          Blais,  carrying  a  handgun.   After  seeing  the  man enter  an          apartment, Officers  Dupuis and Paolino  knocked on the  door and          announced that they were  police officers.  Failing to  receive a          response, they  again  knocked and  announced  their  identities,          after  which  the  apartment's  occupant  asked  who  was  there.          Officer  Dupuis again stated that it  was the police.  Failing to          obtain any  further response, the officers  knocked and announced          themselves a third time.  In response to another inquiry, Officer          Dupuis stated that it was the police and that the occupant should          open the door.  At this point, Blais opened the  door and invited          them in, saying, "Come on in, I'll talk to you in my apartment."                    Officers  Dupuis and  Paolino,  and then  later Rivera,          entered the apartment, which consisted of a single open room that          functioned  as a  bedroom,  living room  and  dining room.    The          officers proceeded  to question Blais, who  appeared intoxicated,          about  the incident  with  McGill.   At  some point  during  this          questioning, Blais sat down on the corner of the bed, and Officer          Dupuis spotted a firearm lying on the bed behind Blais.                    At trial,  the parties  stipulated as to  Blais's prior          conviction of  a crime punishable by a term of more than one year          in prison prior to February 3, 1994, and on November 8, 1994, the          jury returned a verdict of guilty on the indictment's lone count.          On January 11, 1995, Judge Lisi sentenced Blais to 235 months  in          prison, as well as  a 5-year term of  supervised release and  the          statutory assessments.                                         -3-                                    II. DISCUSSION                                    II. DISCUSSION                                        __________                    Blais  makes four  types of  argument.   The first  set          hinges  on  his contention  that, in  light  of United  States v.                                                          ______________          L pez,  ___  U.S.  ___, 115  S.  Ct.  1624,  1626-27 (1995),  his          _____          indictment,  his   jury  instructions  and   his  conviction  are          unconstitutional, or, failing that, the government failed to meet          its  burden  under L pez  with respect  to  showing an  effect on                             _____          interstate commerce.  Second, Blais contests the district court's          denial  of  his motion  to suppress.    Third, he  challenges the          district court's  denial of his motion  for exculpatory evidence.          Fourth, and finally, he  argues that the district court  erred by          refusing to limit or identify which of Blais's  prior convictions          it would allow  the government  to introduce if  he were to  deny          committing the present offense.                   A.  The Constitutionality of Section 922(g)(1),                   A.  The Constitutionality of Section 922(g)(1),                       Interstate Commerce and Related Arguments                       Interstate Commerce and Related Arguments                    Blais  makes four  related arguments  regarding section          922(g)(1)  and the issue of whether his conviction is pursuant to          a proper exercise of the power of the federal government.  Citing          L pez, ___ U.S. ___, 115 S. Ct. 1624, Blais argues that:  (1) the          _____          statute   under   which  he   was   charged   and  convicted   is          unconstitutional; (2)  his indictment  was defective for  lack of          any allegation of effect on interstate commerce; (3) the jury was          improperly  instructed in  a manner that  omitted any  element of          substantial effect  on interstate commerce; and  (4) the district          court erred in  denying his  motion for a  judgment of  acquittal                                         -4-          based on the  Government's failure to meet its  burden to show an          effect on interstate commerce.                    In L pez,  the Supreme  Court struck down  the Gun-Free                       _____          School Zones Act, 18  U.S.C.   922(q), which prohibited  a person          from possessing  a gun while in a "school zone."  L pez, ___ U.S.                                                            _____          at ___, 115  S. Ct. at 1631; see United  States v. McAllister, 77                                       ___ ______________    __________          F.3d 387,  389 (1st Cir. 1996).   The Court held  that in passing          section 922(q),  Congress exceeded  its power under  the Commerce          Clause because that statute was                      not  an  essential   part  of  a   larger                      regulation of economic activity, in which                      the regulatory scheme  could be  undercut                      unless   the  intrastate   activity  were                      regulated.    It  cannot,  therefore,  be                      sustained   under  our   cases  upholding                      regulations of activities that  arise out                      of  or are  connected  with a  commercial                      transaction,   which    viewed   in   the                      aggregate,      substantially     affects                      interstate commerce.          L pez, ___ U.S.  at ___, 115  S. Ct. at  1631.  Blais's  argument          _____          with respect to section  922(g)(1) is essentially that:   (1) the          statute provides that it is unlawful for a felon                      to  ship  or transport  in  interstate or                      foreign  commerce,  or   possess  in   or                                                        _______                      affecting   commerce,   any  firearm   or                      ____________________                      ammunition; or to receive any firearms or                      ammunition  which  has  been  shipped  or                      transported in interstate commerce,          18 U.S.C. 922(g)(1)  (emphasis added); and (2)  this court should          not assume  that Congress  must have meant  "affecting interstate                                                                 __________          commerce"  when  it said  "affecting  commerce"  with respect  to          firearm possession by a felon.  As a result, claims Blais, he was          charged pursuant to an unconstitutional statute.                                         -5-                    However,   Blais's   challenge    to   the    statute's          constitutionality  is foreclosed  by previous  decisions of  this          court.   Since L pez,  this court has  twice ruled  that a facial                         _____          challenge to the  constitutionality of the  statute at issue,  18          U.S.C. 922(g)(1), is "hopeless on . . . the law."          United States v. Bennett, 75 F.3d 40, 49 (1st Cir. 1996), 75 F.3d          _____________    _______          40,  49 (1st cir. 1996) (citing Scarborough v. United States, 431                                          ___________    _____________          U.S.  563 (1977) (discussed in  United States v.  L pez, ___ U.S.                                          _____________     _____          ___, 115  S. Ct. 1624 (1995))) ;  United States v. Abernathy, ___                                            _____________    _________          F.3d ___, 1996  WL 199620,  *2 (1st Cir.  1996) (rejecting  post-          L pez  Commerce Clause-based  challenge to  power of  Congress to          _____          enact    922(g)(1)  and 922(k) and  quoting Bennett's description                                                      _______          of "hopeless[ness]")); see  also United States v. Joost, ___ F.3d                                 _________ _____________    _____          ___, No.  95-2032, slip op. at  17 (1st Cir. Aug. 7,  1996).  The          implication of  our holding  in Bennett  is  that Scarborough  is                                          _______           ___________          still good  law after L pez.  Bennett,  75 F.3d at 49.   We state                                _____   _______          that here more  fully.  In  so doing, we are  in accord with  the          other circuit  courts  that have  confronted  similar  post-L pez                                                                      _____          challenges  to   section  922(g)(1).     See  United   States  v.                                                   ___  _______________          McAllister,  77 F.3d  387,  390 (11th  Cir.  1996) (stating  that          __________          "[n]othing in L pez suggests that the 'minimal nexus' test should                        _____          be changed"); United  States v. Sorrentino,  72 F.3d 294,  296-97                        ______________    __________          (2d Cir. 1995);  United States v. Bell, 70  F.3d 495, 497-98 (7th                           _____________    ____          Cir. 1995); United States  v. Hinton, 69 F.3d 534, 1995 WL 623876                      _____________     ______          (per curiam) (unpublished decision  4th Cir. 1995), cert. denied,                                                              ____________          116 S. Ct. 1026 (1996); United States v. Bolton, 68 F.3d 396, 400                                  _____________    ______                                         -6-          (10th Cir. 1995),  cert. denied,  116 S. Ct.  966 (1996);  United                             ____________                            ______          States  v. Shelton,  66 F.3d  991 (8th  Cir. 1995)  (per curiam),          ______     _______          cert. denied, 116 S. Ct. 1364 (1996); United  States v. Mosby, 60          ____________                          ______________    _____          F.3d  454, 456 (8th Cir.),  cert. denied, 116  S. Ct. 938 (1996);                                      ____________          United States v.  Hanna, 55 F.3d 1456, 1462 n.2  (9th Cir. 1995);          _____________     _____          see also  United States v.  Spires, 79  F.3d 464,  466 (5th  Cir.          ________  _____________     ______          1996)  (upholding the statute under plain error review).  We also          note in  passing that, confronting a  L pez-based challenge, this                                                _____          court also has upheld charges for possession of a firearm with an          obliterated   serial  number   under  18   U.S.C.      922(k)  as          constitutional,  and that statute's  language, like  the language          Blais  challenges, also makes it unlawful for a felon to "possess          in or  affecting commerce,  any firearm  or ammunition."   United                                                                     ______          States v. D az-Mart nez, 71 F.3d 946, 953 (1st Cir. 1995).          ______    _____________                    Given the constitutionality of  the statute, we believe          that  the  indictment and  the  jury  instructions are  similarly          valid,  since  both  tracked  the  language  of  the  statute  in          question.   Furthermore, the district court read to the jury both          the statute  and the  indictment and specifically  instructed the          jury that  as one of the  elements of the crime  in question, the          prosecution  had to  prove  beyond a  reasonable  doubt that  the          firearm had  been  in  or affecting  interstate  commerce.    The                                               __________          district court stated that "[t]he Government may  meet its burden          with  respect to  this element  by proving  a connection  or link          between interstate  commerce and the possession  of the firearm."          The court  went on  to state  that  "[i]t is  sufficient for  the                                         -7-          Government  to satisfy  this element to  prove that  the firearm,          allegedly  possessed  by  the  Defendant,  had[,]  at  some  time          previously,  travelled  across a  state  line"  -- a  proposition          supported by the Supreme Court's holding in Scarborough, 431 U.S.                                                      ___________          at  575 (holding, under  the predecessor statute  to   922(g)(1),          that  proof that  the possessed  firearm previously  travelled in          interstate  commerce was  sufficient  to  establish  an  adequate          interstate nexus).                    Blais also  argues that the district  court should have          allowed his motion  for a  judgment of acquittal  on the  grounds          that the government's sole evidence  on the element of "affecting          interstate  commerce" was  the  out-of-state manufacture  of  the          handgun.   Having  already rejected  his arguments  about L pez's                                                                    _____          alteration  of  the Scarborough  standard  of  minimal nexus,  we                              ___________          conclude  that  the  evidence  proffered by  the  government  was          sufficient to meet  its required  showing of  minimal nexus  with          interstate  commerce.  See  McAllister, 77 F.3d  at 390 (evidence                                 ___  __________          that a gun had previously travelled in interstate commerce before          felon's possession  held sufficient to meet  required showing for          minimal  nexus).   As a  result, we  uphold the  district court's          denial of Blais's motion for a judgment of acquittal.                              B.  The Motion to Suppress                              B.  The Motion to Suppress                    With  respect to the  motion to  suppress, we  review a          district court's findings of fact only for clear error, Bartelho,                                                                  ________          71  F.3d at 441; United  States v. Mart nez-Molina,  64 F.3d 719,                           ______________    _______________          726 (1st  Cir. 1995), but questions of law are subject to de novo                                                                    _______                                         -8-          review,  Ornelas  v.  United  States,  116  S.  Ct.  1657 (1996);                   _______      ______________          Bartelho,  71 F.3d at 441; United States  v. Zapata, 18 F.3d 971,          ________                   _____________     ______          975 (1st Cir. 1994).                    Prior to  trial, Blais  moved to suppress  the evidence          obtained during the officers' February 3 visit  to his apartment.          Based on  the facts  presented at  the  evidentiary hearing,  the          district court  denied Blais's suppression motion.   The district          court  rested its conclusion on the findings that the totality of          the   circumstances  established   that  Blais   voluntarily  and          knowingly  invited the  police officers  into his  apartment, and          that the officers saw the gun lying on the bed in plain view.                      We agree  with the  district court's denial  of Blais's          motion  to suppress.  Based  on the testimony  of Officer Dupuis,          Officer  Paolino  and Rivera,  the  evidence  at the  suppression          hearing reasonably  supported the  district court's  finding that          Blais  gave his  consent  to entry,  and  that that  consent  was          voluntary.  Blais argues  that the officers failed to  advise him          of his right to deny entry.  However, while the failure to inform          an individual that he has a right to withhold consent is a factor          to be weighed in  determining the issue of voluntariness,  such a          failure does  not   preclude a  finding of  valid  consent.   See                                                                        ___          Schneckloth  v. Bustamonte, 412 U.S.  218, 245 (1973); Zapata, 18          ___________     __________                             ______          F.3d at 977.  The district court also properly rejected any claim          of coercion.   While  Blais claims  that  the circumstances  were          inherently coercive  because he was a  69-year-old man confronted          by  two officers and a  security guard, the  evidence showed that                                         -9-          the three  men did not enter  until Blais invited them  in on his          own initiative.  As a result, we conclude that the district court          did  not commit error in finding that Blais admitted the officers          and the security guard into his apartment voluntarily.                    The  district   court  found  that   testimony  at  the          suppression hearing  also showed that the  firearm discovered was          lying on the bed in plain view of the officers as they questioned          Blais.   Defendant's argument  that the district  court erred  in          making this finding is based on a challenge to the credibility of          the  officers  and  the  security guard.    However,  credibility          determinations are for the district court, not  us, to make.  See                                                                        ___          United  States v.  Patrone, 948  F.2d 813,  816 (1st  Cir. 1991),          ______________     _______          cert. denied, 504 U.S. 978 (1992).  And even if  the testimony in          ____________          question  is,  as  Blais  argues, subject  to  another  plausible          reading, the  district court's  choice of  one  of two  competing          interpretations  of the  evidence  cannot  be clearly  erroneous.          United States v. Cruz-Jim nez, 894 F.2d 1, 7 (1st Cir. 1990).          _____________    ____________                    Because we conclude that the district  court's findings          of invited entry and plain view were not erroneous, we affirm its          denial of Blais's motion to suppress.                        C.  The Motion for Exculpatory Evidence                       C.  The Motion for Exculpatory Evidence                    Blais  contends  that  the   district  court  erred  in          quashing certain  subpoenas issued  for the  suppression hearing.          On appeal, Blais points  to quashed subpoenas for arrest  records          and reports  of the  Providence Police Department,  including the          report of the officers' interview with McGill.                                         -10-                    First,  Blais argues  that  the Jencks  Act, 18  U.S.C.            3500,  entitles  him to  these  documents.   However,  the  Act          "establishes procedures whereby a criminal defendant may exercise          his  limited   right  to  obtain  previous   statements  made  by          government  witnesses that are  in the  possession of  the United          States  to be used for  impeachment purposes."   United States v.                                                           _____________          Neal,  36 F.3d  1190, 1197  (1st Cir.  1994).   McGill was  not a          ____          government  witness and did not  testify.  The  statements of all          the witnesses  who did  testify at  the suppression  hearing were          turned over.                      Second,   Blais   contends   that    the   sought-after          information constituted  material he was entitled  to under Brady                                                                      _____          v.  Maryland,  373  U.S.  83 (1963),  for  impeachment  purposes.              ________          However,  Brady  error  occurs  when  the  government  suppresses                    _____          "material"  information that  is favorable  to the defense.   See                                                                        ___          Gilday  v.  Callahan, 59  F.3d 257,  267  (1st Cir.  1995), cert.          ______      ________                                        _____          denied,  116 S. Ct. 1269  (1996).  Information  is "material" "if          ______          there is  a reasonable  probability that,  had the  evidence been          disclosed to the defense, the result of the proceeding would have          been  different."   United States  v. Bagley,  473 U.S.  667, 682                              _____________     ______          (1985).  Blais has failed to articulate any  theory demonstrating          such a reasonable probability.                    In  fact,  Blais has  failed to  show  that any  of the          additional arrest  records or police  reports that he  seeks even          exist.     Indeed,  McGill's   statement  could  not   have  been          exculpatory.   While  her  complaint  was  the  impetus  for  the                                         -11-          officers'  and the  security guard's  visit, her  statement could          have had no relevance  to the issues at the  suppression hearing:          whether Blais admitted the  officers to his apartment voluntarily          and  whether the  firearm was  in plain  view.   As a  result, we          uphold  the district court's  decision to quash  the subpoenas at          issue.                            D.  Blais's Prior Convictions                            D.  Blais's Prior Convictions                    Blais also  contends that  the district court  erred by          failing  to  explain more  fully its  ruling  with regard  to the          admissibility of  his prior convictions.  The  ruling in question          was rendered in response  to Blais's motion in limine  to exclude          criminal convictions greater than ten years old.   The government          objected,  filing  a  memorandum  in support,  arguing  that  the          convictions  should   be  admissible  for  impeachment  of  Blais          pursuant to  Federal Rule of  Evidence 609.   In the course  of a          hearing on the motion,  the government withdrew its  objection to          the  exclusion of all  previous convictions save  four which fell          within the  ten-year limit because  Blais had been  released from          his  prison  term  for  those  convictions  less  than  ten years          previously.  By doing so, the government cleared the way  for the          exclusion  of  a  number  of Blais's  previous  convictions  that          involved the use or  possession of firearms.  The  district court          ruled that  three convictions (for armed  robbery, kidnapping and          driving away in an automobile) could come in.  The district court          explained its ruling to defense counsel as follows:                        So  we're  left, [counsel],  with three                      previous convictions, none  of which  are                                         -12-                      greater than  ten years  old.   The armed                      robbery,  kidnapping  and the  unlawfully                      driving off  an  auto, which  I'm  ruling                      will   be   admissible  to   impeach  the                      credibility of Mr. Blais should he decide                      to testify  under  609.   Depending  upon                      what Mr.  Blais  says on  the stand,  the                      Government  may  seek  permission of  the                      Court  to  introduce  any  of  the  other                      convictions under another rule.          Defense counsel sought further elaboration  as to the last point,          asking  whether testimony denying  the firearm  possession charge          would be viewed  by the court  as opening the  door to the  other          convictions.  The court  responded:  "read the Norton  case.  I'm                                                         ______          not going to do your homework for you."                    Blais  argues that  the  court's  cryptic reference  to          United  States v. Norton, 26  F.3d 240 (1st  Cir. 1994), provided          ______________    ______          little  guidance,  since Norton  recognizes that  "[t]he district                                   ______          court  is vested  with  broad  discretionary  power to  admit  or          exclude evidence."  Id. at 243.  Reading Norton, we do not agree.                              ___                  ______          The defendant in  Norton, like  Blais, was charged  with being  a                            ______        _____          felon-in-possession,  had  a  prior firearm  conviction,  and had          succeeded   in  persuading   the  trial   court  to   exclude  as          inadmissible  all his  prior convictions  greater than  ten years          old, including his  prior firearm  conviction.   However, in  the          course  of his testimony, the defendant in Norton denied not only                                                     ______          possessing  the gun  identified in  the indictment,  but in  fact          denied having ever possessed a  gun in his life.   The prosecutor          sought and was granted permission  to introduce the prior firearm          conviction  to  contradict  the defendant's  false  and  material          testimony.  In  upholding the district court's ruling, this court                                         -13-          explained that "[o]nce Norton denied that he had ever possessed a          gun, he  opened the door  to the  issue of his  prior or  present          firearm possession."  Id. at 244.   As a result, Norton could not                                ___          complain  that he was unfairly  prejudiced by the introduction of          the conviction to show that he lied.  Id. at 244-45.                                                ___                    We conclude that  the district court's  explanation was          hardly  cryptic.  While it may have required that Blais's counsel          do some reading, that is certainly not reversible error.                                   III. CONCLUSION                                   III. CONCLUSION                                        __________                    As  a  result of  the  foregoing, the  judgment  of the          district court is affirmed.                            affirmed                            ________                                         -14-
