
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1779                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   RICHARD ALSTON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Lois M. Lewis, by Appointment of the Court, for appellant.            _____________            Paul  G. Levenson,  Assistant United  States Attorney,  with  whom            _________________        Donald K. Stern, United States  Attorney, was on brief for  the United        _______________        States.                                 ____________________                                     May 5, 1997                                 ____________________                 BOUDIN, Circuit  Judge.  In the  district court, Richard                         ______________            Alston was  found guilty by a jury of being a convicted felon            in  possession of  a  firearm in  violation  of 18  U.S.C.               922(g)(1).  On this well-argued appeal, Alston makes a number            of  claims  of error.   Most  are  readily answered,  but one            issue--what happens  when the government alters  evidence for            arguably   legitimate  reasons   but   to   the   defendant's            disadvantage--requires more extensive discussion.                 The  background facts are not  in dispute.   At about 10            p.m.  on  November  13,  1992,  two  Boston  police  officers            received  a tip from a confidential informant that a man near            5  Fayston  Street in  Dorchester was  carrying  a gun.   The            informant  advised that the man was black, and was dressed in            jeans, a tan  jacket and  black baseball cap.   The  officers            parked  their unmarked car across the street a few doors away            and  saw  Alston emerge  from  5 Fayston  Street  wearing the            clothing described by the informant.                 In  plainclothes  but with  police  badges around  their            necks,  the officers  left their  car and  approached Alston.            According  to the officers, Alston moved his left hand in the            direction of his coat pocket (he denies this), and one of the            officers  grabbed Alston's  arm and felt  the outside  of the            pocket.   Realizing that there  was a gun in  the pocket, the            officer removed it and arrested Alston.                                         -2-                                         -2-                 The gun seized  from Alston  was later  identified as  a            Colt Model  1908  .25-caliber, semi-automatic  pistol.   When            seized, the weapon was  rusted and pitted, and its  slide was            stuck.    It  contained  no  magazine,  and  Alston  had   no            ammunition.  The  gun's grip was wrapped  in electrical tape.            It  is the government's later alteration  of this weapon that            gives rise to the main issue in this case.                 Alston was first  charged under  Massachusetts law  with            possessing  a  firearm without  a  license  and possessing  a            firearm with a  defaced serial  number.  M.G.L.  ch. 269,                10(a),  11C.   Shortly  thereafter,  the  state charges  were            dismissed because  the  Boston Police Department's ballistics            unit had determined that the gun was inoperable and therefore            did  not  meet the  Massachusetts  definition  of a  firearm.            M.G.L. ch. 140,    121.  The Boston Police  then sent the gun            to the U.S. Treasury  Department's Bureau of Alcohol, Tobacco            and Firearms ("ATF").                 An ATF specialist used WD-40 oil and a rawhide mallet to            free the slide.  He also buffed and polished part  of the gun            in  a vain attempt to  determine the serial  number.  Another            specialist then lubricated, disassembled and cleaned the gun,            checked it for safety, reassembled it  and test fired it.  It            appears  that fruitless  attempts  were made  to see  whether            through ballistics marks the  weapon could be associated with            any other crime.                                         -3-                                         -3-                 In November  1994, a federal grand  jury indicted Alston            under the felon-in-possession statute and also for possessing            a firearm with  an obliterated serial number  in violation of            18  U.S.C.   922(k).   The pertinent federal  definition of a            firearm is  more expansive than the Massachusetts definition:            It includes "any  weapon . . . which . .  . is designed . . .            to  expel a projectile  by the action  of an explosive."   18            U.S.C.    921(a)(3).  Thereafter, the  government dropped the            serial number charge but proceeded on the felon-in-possession            charge.                  Alston tried  unsuccessfully  to  suppress  the  gun  as            unlawfully  seized, and  later objected  to its  admission at            trial because it had been altered by the government.  Neither            effort  was successful.  The  gun, and testimony  that it had            been  test fired, were provided  at trial; the  jury was also            told  how the gun had  been refurbished.   The jury convicted            Alston in July 1995 after a short trial.                   In June  1996, Alston  was sentenced  to  188 months  in            prison and three years of supervised  release pursuant to the            Armed Career Criminal Act.  18 U.S.C.   924(e).  That statute            provides  for a minimum sentence of 15 years if the defendant            has  previously  been convicted  of  three  violent felonies.            Alston   had  prior  Massachusetts   felony  convictions  for            manslaughter in  1965, assault  and battery with  a dangerous            weapon in 1968, and armed robbery in 1975.                                         -4-                                         -4-                 On  appeal, Alston's  first claim  is that  the district            court erred in refusing to suppress the gun as the product of            an  unconstitutional search  and  seizure.   Alston's initial            motion to suppress,  inadequately supported, had  been denied            by margin order.  See United  States v. Lewis, 40 F.3d  1325,                              ___ ______________    _____            1334-35  (1st Cir.  1994).   But  thereafter, Alston  filed a            motion  to reconsider  accompanied  by  an affidavit  setting            forth  Alston's  version  of  events.   (The  government  had            previously provided  affidavits of police  officers attesting            to the tip and the reliability  of the unidentified informant            based on prior accurate tips.)                  Alston's affidavit  said in  substance that he  had been            moving a refrigerator with  a friend and had tossed  his coat            onto the porch of the house.   As he lifted the refrigerator,            something fell out onto the pavement and, in the dark, Alston            threw it onto the porch.  When he moved the refrigerator into            the  house and returned  to the porch,  the police approached            him as  he was starting to  put on his coat,  patted him down            and took the  firearm from  his pocket.   Alston's  affidavit            admits that the "something"  he picked up "turned out"  to be            the firearm; he does not say how it got into his coat pocket.                 After  Alston  filed his  affidavit, the  district court            reconsidered the  suppression  request but  again refused  to            suppress.  The judge ruled that assuming Alston's  version of            events  to  be  accurate,  the police  still  had  reasonable                                         -5-                                         -5-            suspicion based  on the informant's information  to conduct a            Terry  stop.   See Terry v.  Ohio, 392 U.S.  1, 21-22 (1968).            _____          ___ _____     ____            Reasonable suspicion was established, said the judge, because            the  confidential informant had given reliable information in            the past; and before stopping Alston, the police were able to            confirm the informant's description of Alston at the location            given by the informant.                 Although  review  of this  appraisal is  plenary, United                                                                   ______            States v. Mendez-De Jesus, 85 F.3d 1, 2  (1st Cir. 1996), the            ______    _______________            district court was clearly  correct in saying that reasonable            suspicion for a Terry stop  was created by such a tip  from a                            _____            previously reliable  informant.   See Adams v.  Williams, 407                                              ___ _____     ________            U.S.  143, 146-47  (1972); Lewis,  40 F.3d  at 1334-35.   And                                       _____            whether or  not Alston reached  for his pocket,  the pat-down            search  was justified  because  the police  had a  reasonable            suspicion that Alston might  be armed.  See United  States v.                                                    ___ ______________            Schiavo, 29 F.3d 6, 8-9 (1st Cir. 1994).            _______                 We  turn  now  to   the  issue  that  poses  the   chief            difficulty,  namely, Alston s  properly preserved  claim that            the  altered gun should  have been excluded  from evidence at            trial.  Alston's argument is that the refurbishments rendered            the evidence substantially  more prejudicial than  probative,            warranting exclusion under Fed. R. Evid.  403; alternatively,            he argues that the government deliberately deprived Alston of                                         -6-                                         -6-            exculpatory evidence  in violation of the  Due Process Clause            of the Fifth Amendment.                 Alston does not dispute that the  gun was at all times a            firearm under the federal statute.  His main objection to the            government's alterations  to the weapon, although perhaps not            his  only objection,  is  that they  tended to  undermine his            claim  that he lacked scienter.   The principal argument made            by Alston's counsel at  trial was that Alston had picked up a            rusty piece of  metal in  the dark and--however  it may  have            gotten into his pocket--Alston had not been aware that it was            a gun.                 It is common ground  that the defendant's knowledge that            he  possesses a weapon is an element  of a crime.  And surely            the  cosmetic improvements  to the  weapon--removal of  rust,            cleaning  of the  gun  and some  restoration of  the handle--            tended to  make it  more readily  recognizable as a  firearm.            Alston's  story might be  especially hard  to believe  if the            jury thought that the object at the time Alston picked it  up            was the  cleaned-up and repaired weapon  received in evidence            at his trial.                 Nevertheless, Alston has an  uphill case under Rule 403.            The  gun was  of  great  relevance  to the  prosecution;  its            possession  was a  critical  element in  the  crime, and  the            failure to offer into evidence the gun allegedly  seized from            Alston  would  have   been  difficult  to  explain.    As  to                                         -7-                                         -7-            prejudice, nothing prevented  Alston from offering  evidence,            through the government's own witnesses, that when seized, the            gun had  been in completely different  shape (rusted, pitted,            and  with electric  tape around  the handle).   In  fact, the            prosecutor brought  out most  of this information  himself on            direct examination.                 The  Boston police  expert  who first  examined the  gun            testified that  the weapon--recognizable as a  handgun in its            original state--had  been in "a severe  rusted condition" and            was "totally brown from rust"; that the slide "would not move            because  it  was  rusted  solid";  that  parts  were  missing            including the magazine  and the grips around  the handle; and            that  the  handle  was wrapped  in  tape.    Then ATF  agents            testified  as to the cleaning  and test firing,  which can be            done without a magazine simply by chambering a bullet.                 Where  the district court  declines to  exclude evidence            under  Rule 403, we reverse only where the district court has            abused its discretion.  United States v. Cruz-Kuilan, 75 F.3d                                    _____________    ___________            59, 61 (1st  Cir. 1996) (district  court's Rule 403  decision            stands  absent  "extraordinarily compelling  circumstances").            Here,  the  evidence  sought  to  be  excluded  was  patently            relevant  and  important,  while  testimony about  the  prior            condition  of the  gun was  available to  mitigate prejudice,            although  not wholly to eliminate it.  The district court did            not commit reversible error.                                         -8-                                         -8-                 More  interesting  is   Alston's  suggestion  that   the            government violated due process requirements  by deliberately            altering  evidence that,  in  its original  form, might  have            helped  to exculpate  Alston.  The  government says  that bad            faith is required for a  successful due process claim, citing            us  to case  law  suggesting that  good faith  destruction of            exculpatory evidence  by the government does  not violate due            process.   See  Arizona v.  Youngblood,  488 U.S.  51,  56-58                       ___  _______     __________            (1988); California v. Trombetta, 467 U.S. 479, 488-89 (1984).                    __________    _________            Compare People v. Newberry, 652 N.E.2d 288, 292 (Ill. 1995).            _______ ______    ________                 Here,  no  basis exists  for a  charge  of bad  faith or            negligence.    To see  if the weapon  had been used  in other            crimes was  simply good police work.  And the test firing, so            long  as  the  unjamming  and  rust  removal  were  admitted,            properly helped  to confirm that  the gun  was "designed"  to            expel  a bullet by explosion.  The only disadvantage of which            Alston might fairly complain is that the  cleaning and repair            work tended  to undermine his scienter argument; and there is            no  reason  to think  that the  ATF anticipated  the scienter            defense.                 We are not  prepared to say that  the government's "good            faith" is always and  everywhere a complete defense to  a due            process  claim  where  the  government   deliberately  alters            evidence that might otherwise have exculpated the  defendant.            The   genre  involves   the  conflicting  interests   of  law                                         -9-                                         -9-            enforcement and the protection of defendants; there is a vast            kaleidoscope of  different  possible situations,  varying  in            conduct,  motive,  justification and  effect.    It would  be            surprising if  a single rubric or rule  provided a mechanical            solution to such dilemmas.    The due  process standard, when            no  more specific provision of the Bill of Rights governs, is            one  of "fundamental fairness."   Trombetta, 467 U.S. at 485.                                              _________            Where law  enforcement and  criminal procedure are  at issue,            the  courts   have  been  willing  to   examine  closely  any            substantial  threat to  the  fairness of  the trial  process.            E.g., Brady v.  Maryland, 373 U.S. 83, 87-88 (1963).   At the            ____  _____     ________            same time, we are  talking about a constitutional constraint:                                               ______________            however  phrased, the  threshold for  courts to  intervene is            fairly  high.  See Rochin v. California, 342 U.S. 165, 172-73                           ___ ______    __________            (1952).                   In the present  case, it is enough that the government's            alteration  of  the  evidence  did  not  significantly impair            Alston's  ability to  present a legitimate  scienter defense.            As already indicated, Alston was free  to present evidence to            give  the jury  a reasonably  effective  picture of  what the            weapon looked like  before it had been  cleaned and restored;            and, as noted,  most of this evidence was brought  out by the            prosecutor.   Yes, disputes might  exist as to  just how much            rust  or  tape had  been removed;  but  we are  talking about            overall fairness and not perfection.                                         -10-                                         -10-                 In  his  brief  in  this  court, Alston  appears  to  be            suggesting   a  different   objection  to   the  government's            alterations, namely, that by cleaning the gun and freeing the            slide, the government made the weapon a more menacing object;            and  this in turn implied that Alston's possession of the gun            presented  a greater threat to public  safety than the rusted            and frozen weapon actually created.  It may well be that  the            cleaned-up,   working   weapon   gave   the    prosecutor   a            psychological edge.                 Yet  Alston was not charged with being a danger but with            being  a felon  in possession  of a  firearm.   The defendant            cannot  ask  the   jury  to  nullify  the   law,  whether  by            interpolating an  element that  does not exist  or otherwise.            See  United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir.            ___  _____________    _________            1993),  cert.  denied, 512  U.S. 1223  (1994).   By  the same                    _____________            token, we do not think that it is an independent objection to            evidence,   otherwise  properly   admissible,  that   it  may            incidentally reduce the chance that the jury will nullify the            law on its own.                   In rejecting  Alston's claims, we think  it worth adding            that  trial judges  have  considerable  latitude in  handling            situations of  this kind.    Rule 403  aside, the  spoliation            doctrine--actually   several   different   rules--gives   the            district court various remedies for seeking to assure  that a            loss  of  evidence caused  by  one  side  does  not  unfairly                                         -11-                                         -11-            prejudice the other.  See Sacramona v. Bridgestone/Firestone,                                  ___ _________    ______________________            Inc., 106 F.3d 444, 447  (1st Cir. 1997).  Under  such rules,            ____            bad faith is not an automatic requirement for relief.  Id.                                                                   ___                 Apart  from  his  attack  on the  government's  use  and            alteration  of the  gun, Alston  has several  other arguments            relating  to  trial  and  sentence.    One  of them--that  no            rational jury could conclude  that Alston knew that he  had a            gun--requires no extended discussion.  The gun  was a firearm            under the  federal definition, Alston  had it in  his pocket,            and the jury was  certainly not obliged to believe  the story            that Alston thought  that the  gun was something  else.   See                                                                      ___            United States v. Staula,  80 F.3d 596, 605 (1st  Cir.), cert.            _____________    ______                                 _____            denied, 117 S. Ct. 156 (1996).            ______                 Alston  also attacks  his trial  attorney's performance.            Normally, we  do not consider  such claims on  direct appeal,            because the  record has  not been  developed in the  district            court.  Mala  v. United States, 7  F.3d 1058, 1063 (1st  Cir.                    ____     _____________            1993),  cert. denied,  511 U.S.  1086 (1994).   But,  in this                    ____________            case, Alston did present  such a claim in the  district court            through new counsel,  who supported the claim with  a 19-page            memorandum; the government responded;  and the district court            rejected the claim on the merits.   Thus, we may consider the            claim.  United States v. Natanel, 938 F.2d 302, 309 (1st Cir.                    _____________    _______            1991), cert. denied, 502 U.S. 1079 (1992).                   ____________                                         -12-                                         -12-                 To establish a Sixth  Amendment violation, Alston has to            show that  his lawyer's performance "fell  below an objective            standard  of  reasonableness,"  and that  prejudice  resulted            because,  absent   the  mistake  or  mistakes,   there  is  a            reasonable  probability that  the  outcome  would  have  been            different.   Strickland v. Washington, 466  U.S. 668, 687-88,                         __________    __________            691-92  (1984);  Scarpa v.  DuBois, 38  F.3d  1, 8  (1st Cir.                             ______     ______            1994), cert. denied, 115 S. Ct. 940 (1995).  Alston points to                   ____________            various  alleged  mistakes  by  trial counsel.    Even  taken            together,  these  mistakes  do  not  satisfy  the  Strickland                                                               __________            standard.                 The brunt  of Alston's  ineffective assistance claim  is            that  Alston's   counsel,  instead   of  resting   after  the            government presented  its case,  should have  offered several            defense  witnesses   for  a  theory  that   the  defense  had            originally proposed.    This approach,  outlined  in  defense            counsel's  opening statement to  the jury, was  to retell the            story  about  the  refrigerator move  and  then  to  argue or            insinuate that  the informant  (to secure a  reward) probably            placed  the gun in Alston's coat pocket after Alston had gone            inside the house to deliver the refrigerator.                 Alston had  subpoenaed the man who  allegedly helped him            move the refrigerator,  and we will assume  that this witness            might have  confirmed that part of the story.  But the notion            that  the  informant planted  the  gun  is pure  speculation.                                         -13-                                         -13-            Alston  now says that at least his trial attorney should have            sought  disclosure  of  the  informant's  name.    Government            privilege would  make this task difficult,  see United States                                                        ___ _____________            v. Batista-Polanco,  927 F.2d 14, 19-20 (1st  Cir. 1991), but               _______________            perhaps  not  impossible  if the  informant's  testimony were            likely  to  be very  important to  the  defense.   Roviaro v.                                                               _______            United States, 353 U.S. 53, 59, 64-65 (1957).            _____________                 Still,  it  is  hard  to  imagine  the  privilege  being            overcome where, as here, nothing suggested that the informant            had actually planted the  gun.  Moreover, the  district judge            knew  that in moving to suppress, Alston had himself filed an            affidavit indicating that he  had picked up the gun  after it            fell  out of  the refrigerator.   Whether he put  it into his            pocket immediately or  left it on the  porch temporarily, the            notion  of the informant as a deus ex machina was effectively                                          _______________            undermined.   There was  no likelihood  that the court  would            have required disclosure of the informant's identity.                 Overall, defense counsel at  trial had a very weak  hand            to  play, since Alston was  caught in possession  of the gun,            and his prior felony convictions were easily proved.  To rely            on  the notion  that Alston  did not  know it  was a  gun was            probably a thin reed (although one also grasped by  appellate            counsel in this  court).  Nevertheless, the  decision to rely            on  this  straightforward  defense  at  trial,  rather   than            complicate  it  with an  even  less plausible  story  about a                                         -14-                                         -14-            planted weapon, was  a choice well  within the discretion  of            counsel.                 Alston's last  claim of error relates  to enhancement of            his  sentence under  18  U.S.C.    924(e), the  three-strikes            provision for  violent felony convictions.   Alston says that            due  to the  passage  of time,  his  civil rights  have  been            restored  under  Massachusetts law  for  one or  more  of the            convictions relied upon by the district court to comprise the            three prior  violent felonies.  Under 18 U.S.C.   921(a)(20),            a conviction "shall not be considered" where inter alia                                                         __________                 a person  . . . has had civil rights restored . . .                 , unless  such .  . .  restoration of civil  rights                 expressly provides  that the  person may not  ship,                 transport, possess or receive firearms.                 The district court replied  that since the first of  the            three  convictions,  Alston has  at all  times had  his civil            rights  suspended.  In  other words, as  the sentencing judge            read the statute, a conviction  can still be considered under            the  three strikes  provision,  even though  enough time  had            otherwise passed under state law for the restoration of civil            rights,  so  long  as  the  period  of  disability  had  been            maintained  on account of a  later conviction.  This presents            an  interesting problem which  need not  be resolved  in this            case.                   Massachusetts materially restricts an  ex-felon's right            to carry and traffic in firearms regardless of the passage of            time.   United States  v. Estrella, 104  F.3d 3,  8 (1st Cir.                    _____________     ________                                         -15-                                         -15-            1997).   In  Estrella,  we found  these limited  restrictions                         ________            trigger the above-quoted "unless" exception to  the provision            relied  upon by  Alston as  restoring his  civil rights.   18            U.S.C.    921(a)(20).   Estrella  was decided  after Alston's                                    ________            sentence and the  original briefing, but his  reply brief has            no effective answer to that decision.                 Some might think  that a 15-year sentence for carrying a            rusty and inoperable handgun is  excessive where there is  no            evidence that  the defendant was otherwise  engaged in crime.            Others  might point  to  Alston's long  criminal record,  not            fully related in  this opinion.  It may help  to complete the            story by  recounting that,  at oral argument,  the prosecutor            told us  that Alston  had  refused a  proffered plea  bargain            looking toward a lesser sentence.                   Affirmed.                 ________                                         -16-                                         -16-
