United States v. Alston

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.

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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.

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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.

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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

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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

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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

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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.

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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

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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.

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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

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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).

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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.

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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

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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.

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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.

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