
USCA1 Opinion

	




          August 17, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2418                                     UNITED STATES,                                      Appellee,                                          v.                                   DENNIS E. FRIEL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Dennis E. Friel on brief pro se.            _______________            Richard  S.  Cohen, United  States  Attorney,  David  R.  Collins,            __________________                             __________________        Assistant  United  States Attorney,  and  F.  Mark Terison,  Assistant                                                  ________________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Appellant Dennis E. Friel was indicted                      __________            by  a federal  grand jury  with two  counts of  possession of            firearms by a person convicted of a felony in violation of 18            U.S.C.       922(g)(1)  and   924(a)(2).1     Appellant   was            convicted, after a jury trial, on both counts.  He raises six            issues  on appeal, all of  which we reject  for the following            reasons:                      1.  Appellant argues that his conduct does not come            within language of    922(g)(1) requiring that the possession            of the firearms be "in or affecting commerce."  At trial, the            government's  expert testified  that one  of the  weapons had            been manufactured in Massachusetts in  1987 and the other had            been  manufactured  in  Italy  between 1951  and  1968;  both            weapons,  according   to  this   witness,  had   traveled  in            interstate commerce to arrive in Maine.                      In  United States  v.  Gillies, 851  F.2d 492  (1st                          _____________      _______            Cir.), cert.  denied,  488 U.S.  857 (1988),  we addressed  a                   _____________            similar argument.   The defendant in Gillies had possessed in                                                 _______            Massachusetts, in 1986,  a gun that  had, in 1977,  travelled            from  Brazil to Florida.   The defendant argued  that the in-            state  possession of a weapon  that had, at  some time in the            past, arrived from out  of state, did not meet  the affecting                                            ____________________            1.  Section 922(g)(1)  provides in  relevant part  that "[i]t            shall be unlawful for any person . . . who has been convicted            in any court of . . . a crime punishable  by imprisonment for            a  term exceeding  one year  . .  . to  . .  . possess  in or            affecting commerce, any firearm. . . ."            commerce requirement.   We rejected this  interpretation of              922(g)(1).  Id. at 493.                        ___                      We held that  "possession of a gun  that did travel                                                               ___            interstate   before  the  felon  possessed  it"  satisfied               922(g)(1).   Id.  at 494.   That  is, the  affecting commerce                         ___            language includes  "past or present effects."   Id. (emphasis                                ____                        ___            added).   In so holding,  we relied on  Scarborough v. United                                                    ___________    ______            States, 431 U.S. 563 (1977).  In  considering the predecessor            ______            to    922(g)(1), the Supreme Court held that "Congress sought            to reach  possessions broadly,  with little concern  for when            the nexus  with commerce occurred."   Id.  at 577.   We cited                                                  ___            Scarborough  for the  conclusion  that "as  long  as the  gun            ___________            previously had travelled in  interstate commerce," a felon in            __________            possession of it violated the statute.  851 F.2d at 494.                      2.    Appellant next  asserts  that  the government            failed  to  prove  not  only that  he  "knowingly"  possessed            firearms, but that he "knowingly"  violated the law in  doing            so.   Appellant  bases his  argument on  the language  in the            indictment  which states that appellant "knowingly possessed,            in  and affecting commerce,  a firearm . .  . in violation of            Title 18.  . . ."   We have  rejected this type  of argument,            stating  that   "[t]his  court,  and  every   court  to  have            considered the issue,  has held that the  government need not            prove  the  defendant  knew  he  was  violating  the  federal            firearms law nor would `ignorance of the law' be a defense in                                         -3-            such  a prosecution."  United States v. Ramos, 961 F.2d 1003,                                   _____________    _____            1005  (1st Cir.) (citing cases), cert. denied, 113 S. Ct. 364                                             ____________            (1992).                      3.  Appellant argues  generally that   922(g)(1) is            unconstitutional.  Specifically, he  asserts that the  limits            imposed by    922(g)(1)  violate the constitutional  right to            bear  arms.   The  Supreme Court  plainly  has held  that the            Second  Amendment  --   "A  well  regulated  Militia,   being            necessary  to  the security  of a  free  State, the  right of            people  to keep  and bear  Arms, shall  not be  infringed" --            applies only to firearms having a "reasonable relationship to            the preservation or efficiency of a well regulated militia. .            . ."  United States v. Miller, 307 U.S. 174,  178 (1939); see                  _____________    ______                             ___            also  Lewis  v. United  States, 445  U.S.  55, 65  n.8 (1980)            ____  _____     ______________            (legislative  restrictions  on  the  ability of  a  felon  to            possess a  firearm do  not "trench upon  any constitutionally            protected liberties").                      Appellant's  reliance on  the  Constitution of  the            State  of Maine is unavailing.  See United States v. Minnick,                                            ___ _____________    _______            949 F.2d 8, 10-11 (1st Cir. 1991) (Supremacy Clause of United            States Constitution prevents reliance  on the qualified right            to bear arms contained in the New Hampshire Constitution as a            defense  to    922(g)(1)),  cert.  denied,  112 S.  Ct.  1698                                        _____________            (1992).   In  any event,  as the  government points  out, the            Maine Constitution does not prohibit the state from making it                                         -4-            a crime  for a convicted  felon to  possess a  firearm.   See                                                                      ___            State  v. Brown, 571 A.2d  816, 817 (Me.  1990) ("no absolute            _____     _____            right" to bear arms exists under Maine Constitution).                      4.  The  district court denied  appellant's motion,            made under  Fed. R. Crim.  P. 6(e)(3)(C)(i), to  disclose all            grand jury  proceedings leading up  to his indictment.   This            rule provides that disclosure of such proceedings may be made            "when  so  directed  by  a  court  preliminarily   to  or  in            connection with  a judicial proceeding."   In support  of his            motion,  appellant stated  that he  felt "strongly"  that the            prosecution  had  abused   the  grand  jury   proceedings  in            procuring the  indictment, that  the prosecutor had  used the            grand  jury  to prepare  his  case, and  that  his publicized            religious views and  long hair may have  prejudiced the grand            jury  against him.  He also requested the grand jury material            so that he could make sure that the grand jury had understood            their  function and had not  been merely a  "rubber stamp" of            the  prosecutor;  he also  sought  to  ascertain whether  the            prosecutor had disclosed any grand jury material to the local            authorities.  Finally, he  cited to his right to  inspect the            grand jury list to challenge the jury selection process.                      "The  Supreme Court  repeatedly has  recognized the            importance of secrecy in  grand jury proceedings, even after,            as  in this case, the grand jury has concluded its function."            United  States  v. McMahon,  938  F.2d 1501,  1504  (1st Cir.            ______________     _______                                         -5-            1991).  Thus,  to be  entitled to grand  jury material  under            Rule 6(e),  appellant must  show a "particularized  need" for            the  material requested,  see Pittsburgh  Plate Glass  Co. v.                                      ___ ____________________________            United  States, 360  U.S.  395,  399  (1959), or  that  "some            ______________            possible  grounds  for dismissal  would  be  produced."   See                                                                      ___            United  States v.  Llaca  Orbiz, 513  F.2d  816, 818-19  (1st            ______________     ____________            Cir.), cert. denied, 423 U.S. 861 (1975).  Further, appellant                   ____________            bears  the burden of showing that "the need for disclosure is            greater than  the need for  continued secrecy and  that [the]            request is structured to cover only material so needed."  See                                                                      ___            Douglas  Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222            ________________    ______________________            (1979) (footnote omitted).                      The  district  court  determined  that  appellant's            request, based  upon his  strong feelings,  did not  meet the            above   standard.     A   district  court   has  "substantial            discretion" to decide whether to release grand jury material.            Id. at  223.  We do  not think the district  court abused its            ___            discretion  in this  case.   First,  appellant's request  was            based  only  upon his  desire  to review  the  proceedings to                                                                       __            search  for impropriety.  This is insufficient.  See Walsh v.            ______                                           ___ _____            United  States, 371  F.2d 436,  437 (1st  Cir.) (per  curiam)            ______________            (where  defendant  "merely  asked  [for]  an  opportunity  to            examine  the  [grand  jury]  records  without specifying  any            reason," no  abuse of  discretion in denying  request), cert.                                                                    _____            denied, 387 U.S. 947  (1967).  Further, appellant's "reasons"            ______                                         -6-            do not rise to  the level of stating  "particularized" needs.            Rather,  his statements are conclusory in nature and he cites            to  no evidence of a specific nature to support his requests;            thus,  the "presumption  of regularity"  remains.   See Llaca                                                                ___ _____            Orbiz,  513  F.2d  at   819  (where  no  evidentiary  showing            _____            proffered concerning  allegation that  secrecy of  grand jury            had been breached, grand  jury proceedings presumed regular).            Finally,  as  for  appellant's  challenge  to  the  selection            process, it  does not contain any  indication concerning what            rights  appellant  believes the  selection  process violated.            See id. at 819 n.5.            ___ ___                      5.    Appellant  was  arrested  at  his  daughter's            apartment  after a  warrant for  his arrest  had issued.   He            moved,  in the  trial court,  to suppress  his arrest  on the            ground  that  federal  agents  had   entered  his  daughter's            apartment,  despite her objection,  without a  search warrant            and without adequate notice.   The district court denied  the            suppression   motion,  in  part,  because  appellant  had  no            "constitutionally protected interest" to assert.  We agree.                      The Supreme  Court has  held that it  is proper  to            allow  "only defendants  whose Fourth  Amendment rights  have            been  violated  to  benefit  from the  [exclusionary]  rule's            protection."    See Rakas  v.  Illinois,  439 U.S.  128,  134                            ___ _____      ________            (1978).   That  is, a defendant  who claims that  a search of            another's premises  was illegal  has not  had his own  Fourth                                                          ___ ___                                         -7-            Amendment  rights  violated.   Id.   To meet  this "standing"                                           ___            requirement, appellant  "ha[s] the  burden of showing  . .  .            that  he had  a  reasonable expectation  of  privacy" in  the            premises searched.   See United States  v. Aguirre, 839  F.2d                                 ___ _____________     _______            854,  859 (1st  Cir. 1988).   Such  a showing is  made where,            among other things, a defendant presents evidence that  he or            she lived in the  premises searched, kept personal belongings            there  or had the ability to restrict access to the premises.            Id.            ___                      Appellant  has not  alleged that  any of  the above            factors were  present.  He only  argued below, as he  does on            appeal,  the merits of the Fourth Amendment claim -- that the                         ______            search was illegal.   However, under  Rakas and Aguirre,  the                                                  _____     _______            district court  correctly refrained from reaching  the merits            of the challenged search  where appellant failed to establish            a  privacy interest in his  daughter's apartment.  See Rakas,                                                               ___ _____            439 U.S. at 150; Aguirre, 839 F.2d at 859.                             _______                      6.   Finally,  appellant claims that,  before trial            started,  the  district  court denied  him  the  right to  be            presumed innocent.  Appellant alleges that this occurred when            the  court asked the jury  the following question:   "Has any            juror already reached an opinion as to the guilt or innocence            of  this  defendant?"   According  to  appellant, each  juror            answered "no"  by the  shaking of  heads or by  silence.   He                                         -8-            argues that by answering "no," the  jury was expressing their            opinion that they did not, in fact, presume him innocent.                      We reject  this tortured interpretation.   Plainly,            by answering in the negative, the jurors were indicating that            they had not formed any opinions concerning appellant's guilt                     ___            or innocence.  In any event, just  prior to the question, the            court gave the following instruction:                           I  will instruct you  that under the                      [C]onstitution  and  laws  of the  United                      States, every defendant is presumed to be                      innocent, and  that your duty as  a juror                      will be to return a verdict of not guilty                      unless   you   are  convinced   beyond  a                      reasonable doubt on the evidence  and law                      admitted in this case that the government                      has proved that the defendant is guilty.            It is  hard to perceive how the court could have made plainer            the presumption of innocence.                      For   the  foregoing   reasons,  the   judgment  of            conviction  is affirmed.   Appellant's  motion to  strike the                           ________            government's brief is denied.                                  ______                                         -9-
