
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                 ___________________          No. 92-1995                                                UNITED STATES,                                      Appellee,                                          v.                                   PETER A. LEBON,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ___________________               Roger A. Cox on brief for appellant.               ____________               A. John Pappalardo,  United States Attorney, and  Michael J.               __________________                                __________          Tuteur, Assistant U.S. Attorney, on brief for appellee.          ______                                  __________________                                  __________________                 Per  Curiam.   Defendant  contends  that the  government                 ___________            knowingly  permitted its main  witness, Tina Pina,  to commit            perjury.  We  conclude defendant has not  established perjury            and affirm his conviction.                 First, defendant claims  Tina perjured herself  when she            testified that  "being handcuffed  and charged with  unlawful            carrying a  firearm" was "all  new to [her]."   The statement            was  perjurious,  according  to  defendant,  because  it  was            tantamount to an assertion  that she had never  been arrested            before,  when,  in  fact, she  had  previously  faced several            charges  in her  life.   Defendant  reads too  much into  the            statement.   Tina  did not  assert  that she  had never  been            arrested.   Moreover, even if  Tina had been arrested  in the            past, being handcuffed and charged with unlawfully carrying a            firearm  in the manner described  at trial could well qualify            as "new" to her.  Defendant has not shown perjury.                 Second, defendant  contends Tina  perjured herself  when            she testified  that it was defendant who handed her a gun and            told her to  stash the gun in  her pants.  Perjury  is shown,            defendant  claims, by the fact that Tina, interviewed several            days after arrest by Agent  Offringa, did not then tell Agent            Offringa that defendant  was the one who had  directed her to            stash the gun  and by alleged statements in  two reports that            she did not know who had handed her the gun.                 Again,  defendant has not shown perjury.  Agent Offringa                                         -2-            acknowledged at trial  that his report of his  interview with            Tina several days after arrest  did not identify defendant as            the one who had  given her the gun  and had told her to  hide            it.   Agent Offringa  testified, however, that  in subsequent            interviews  Tina consistently  claimed defendant was  the one            who had directed her and that she had never  said anyone else            had handed  her the gun.1   As for the  alleged statements in            two reports  that Tina had claimed  she did not know  who had            handed  her  the gun,  the reports  were not  introduced into            evidence.    Consequently,  there is  no  record  support for            defendant's claim  that Tina told  officers she did  now know            who  handed her  the gun.    We will  not consider  on appeal            evidence or  arguments which have  not been presented  to the            trial court.  In any event, however, the  fact that a witness            contradicts herself or  changes her story does  not establish            perjury.   See,  e.g., Tapia  v. Tansy,  926 F.2d  1554, 1563                       ___   ____  _____     _____            (10th  Cir.)  ("Contradictions  and  changes  in a  witness's            testimony alone do not  constitute perjury and do  not create            an  inference, let alone prove, that the prosecutor knowingly            presented perjured testimony."), cert. denied, 112 S. Ct. 115                                             ____________                                            ____________________            1.  Defendant asks this court to expand the record to include            Agent Offringa's  report.  The  request is denied.   Although            the report was utilized by defense counsel in cross-examining            Agent  Offringa, the report was not introduced into evidence.            Defendant may not  add to the record at  the appellate level.            In any event, since Agent Offringa acknowledged at trial that            his report did not identify defendant as the one handing Tina            the gun,  the report itself  is not needed to  establish what            Agent Offringa has admitted.                                         -3-            (1991).                 In  accordance  with  our  obligation  under  Anders  v.                                                               ______            California, 386 U.S.  738, 744 (1967),  we have reviewed  the            __________            trial  and sentencing  record.   We  conclude  the appeal  is            wholly frivolous.  Consequently, counsel's motion to withdraw            is granted.  Defendant's motions are denied, and the judgment            is affirmed.               ________                                         -4-
