United States Court of Appeals
For the First Circuit
No. 02-1007
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT J. ADAMS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Gibson,* Senior Circuit Judge,
and Torruella, Circuit Judge.
Thomas G. Briody, by appointment of the court, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Mary E.
Rogers, Assistant United States Attorney, were on brief for the
United States.
September 20, 2002
*
Honorable John R. Gibson, of the Eighth Circuit, sitting by
designation.
BOUDIN, Chief Judge. Based on information from an
informant, the Providence, Rhode Island, police conducted
surveillance of a residence in that city, secured a search warrant,
and discovered in the basement two weapons: a .44 caliber revolver
and a .45 caliber pistol with a badly scratched serial number. The
next day, the defendant Robert Adams was interviewed by a federal
agent and, waiving his Miranda rights, admitted to owning the guns
and attempting to scratch out the serial number on the .45 with a
screwdriver. Thereafter, a jury convicted Adams of being a felon
in possession of a firearm, 18 U.S.C. § 922(g) (2000), and
possessing a firearm with an altered serial number. Id. § 922(k)
(2000).
Adams now appeals. The only claim that raises a legal
issue of general importance concerns the definition of "altered" as
used in section 922(k). That section makes it unlawful inter alia
for anyone "knowingly" to possess any firearm, shipped in
interstate commerce, that has had the manufacturer’s "serial
number removed, obliterated, or altered . . . ." Id. Adams's
knowledge that the serial number had been tampered with is not in
dispute and the commerce element was stipulated to.
The district court charged the jury that to alter was "to
make some change in the appearance of the serial number."
Following the charge, Adams objected that the instruction on
alteration ought to have included "something about materiality."
What objection was made before the charge is unclear but the need
for a materiality requirement was argued by both sides on the
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motion to acquit just before the charge. At that stage the
district judge expressly rejected Adams’s position that materiality
was a separate requirement.
On this appeal, Adams argues that the evidence was not
sufficient for conviction--an argument preserved by the motion to
acquit made at trial--because (he claims) the serial number was
still legible despite the screwdriver scratches. He also says that
the district court’s instruction was erroneous, arguing that a
"material alteration . . . rendering the weapon difficult or
impossible to trace" is necessary to justify a conviction. The
issues of adequate evidence and instruction are different but both
begin with the antecedent question of what conduct the statute
means to encompass.
The crime of having a firearm with an "altered" serial
number goes back, it appears, to the Federal Firearms Act of 1938.
Pub. L. No. 785, § 2(i), 52 Stat. 1250, 1251 (1938). We have found
little useful appellate precedent on the meaning of "altered"; and
the government tells us that extensive research in the legislative
history has produced nothing enlightening. If the statute made it
a crime to attempt to alter a serial number, this case would be
easy since Adams confessed to trying to obliterate the number; but
there is no general federal "attempt" statute and no "attempt"
provision in this one.
Yet anyone can see what Congress was getting at in the
statute. Taking the words in context ("removed, obliterated, or
altered"), the statute aims to punish one who possesses a firearm
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whose principal means of tracing origin and transfers in ownership-
-its serial number--has been deleted or made appreciably more
difficult to make out. Considering the evident purpose, it is hard
to see why anything more than a significant impairment should be
required; nothing in language or purpose suggests that the
alteration must make tracing impossible or extraordinarily
difficult.
Turning to the proper instruction, we think it would
ordinarily be enough to charge the jury in the words of the
statute, leaving it to the common sense of the jury to understand
the purpose and to adjust its application to carry out that
purpose. "Alter," in this statute, is not some highly obscure or
special-purpose term that cries out for elaboration. This, then,
is an instance in which the district judge may choose to elaborate
but is not ordinarily required to do so. United States v.
Tormos-Vega, 959 F.2d 1103, 1112 (1st Cir.), cert. denied, 506 U.S.
866 (1992).
It is possible to imagine cases where arguably some
further elaboration or even a directed verdict might be called for
(e.g., a small scratch that did virtually nothing to make the
serial number harder to read). But such cases are unlikely to be
filed by a prosecutor with any sense. If and when such a case is
brought, one might expect the trial judge to refine the instruction
so far as necessary or, depending on circumstances, even to direct
a verdict for defendant. Ours is not such a case.
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Thus, we think--with Adams--that there is a kind of
materiality requirement implicit in the statute but also one
implicitly understood by jurors. This is especially so because,
and here we agree with the government, any change that makes the
serial number appreciably more difficult to discern should be
enough, assuming always that the defendant made the change or is
otherwise aware of it. See United States v. Abernathy, 83 F.3d
17, 19 & n.1 (1st Cir. 1996) (knowledge of the alteration
required). To be sure, there are contexts in which a materiality
concept may be highly technical and requires explanation--consider
security fraud--but this is not one of them.
As for the evidence, that was clearly sufficient once it
is understood that any alteration that works against legibility is
enough; once again, we assume defendant's knowledge of the
alteration which, in this case, can hardly be disputed. The pistol
was presented to the jury. The case agent testified at trial that
he could read the six digits of the serial number but with
difficulty. At oral argument, Adams’s counsel asked that this
court examine the original pistol, and we now report the results.
Of the original six digits, the first four have been
scratched or abraded so that they are significantly more difficult
to read. In the case of the first, second and fourth, about half
or more of the digit has been obscured by the scratching although
the original can still be made out, while the third is damaged
badly enough that it could be taken as a 3 or a 5. The case agent
identified it as a 5, but it is so far from a slight scratch or
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minor imperfection as to make concerns about the borderline
academic in this case. (To complete the story, the fifth digit is
completely readable but was thoroughly scratched at and only the
sixth digit is unmarred.)
Of course, judgment as to the degree of impairment was
for the jury. But a reasonable jury could easily conclude that
this pistol had been altered so as to make it appreciably more
difficult to read the serial number. Indeed, a reasonable jury
could hardly reach any other conclusion. Only by reading the term
"alter" to mean "obliterate" or "make impossible to interpret"
could we find the evidence insufficient. The rule of lenity,
invoked by Adams, is reserved for cases of genuine ambiguity,
Muscarello v. United States, 524 U.S. 125, 138 (1998), and, all
things considered, "altered" in context is not ambiguous.
We take the remaining five claims on appeal in order of
the events at trial. The first claim is that jury selection,
conducted by consent before a magistrate judge, see Peretz v.
United States, 501 U.S. 923, 939 (1991), was flawed because of the
failure to afford defense counsel a final look at the potential
alternative jurors before defense counsel agreed that he was
satisfied with the initial 12 jurors.
As defense counsel had already exhausted his peremptory
challenges, it is not clear what a further look would have
accomplished. In any event, defense counsel who had already spent
plenty of time with the full venire made no effort to bring the
objection to the attention of the district judge, as Peretz
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permits. Id. Counsel cannot wait until the trial is over before
raising a known claim that, if it had any merit, could easily have
been corrected at the time.
Next, on September 12, 2001, after the jury had been
selected, defense counsel asked the district judge for a further
voir dire. The purpose was to determine whether any of the jurors
(now selected but not yet sworn) had friends or relatives who had
suffered in the September ll World Trade Center attack and, if so,
whether such jurors could remain impartial. The district judge
denied the request on the ground that the attack had "no relation
whatsoever" to the events in which Adams was charged. Adams says
that this was error.
Whether to reopen voir dire and what questions to permit
is largely within the discretion of the district court. See United
States v. Brown, 938 F.2d 1482, 1485 (1st Cir.), cert. denied, 502
U.S. 992 (1991). Here, Adams was not accused of a violent act, let
alone one connected with terrorism. Further, Adams had confessed
in writing to the key facts, so the jury’s predisposition as to
police credibility--a matter tested in the original voir dire--was
of minimal importance. United States v. Victoria-Peguero, 920 F.2d
77, 84 (1st Cir. 1990), cert. denied, 500 U.S. 932 (1991). The
district court did not abuse its discretion in refusing the request
for more questioning.
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Adams then attacks the district court refusal to hold a
Franks hearing designed to challenge the search warrant.1 The
warrant had been issued by a state judge based on an affidavit from
a Providence police detective. The affidavit recounted a report
from an informant who had described in detail, based on personal
observation, recent drug dealing by Adams and others in the
residence later searched and the storage of drugs and guns in the
basement. The affidavit said that the informant had given useful
information in the past and "had never been found to be false or
misleading."
After receiving this tip, the detective and other
officers conducted surveillance of the residence, confirming
details provided by the informant. The police noticed not only
Adams and others fitting the informant’s description of the drug
dealers but also brief visits by numerous persons "consistent with
drug trafficking." A criminal history check showed that Adams had
previously been convicted of drug dealing. The ensuing search, of
course, turned up the weapons in the basement.
In a pre-trial motion, Adams asked the court to suppress
the evidence, claiming inter alia a lack of probable cause for the
search. Needless to say, this claim was rejected and the probable
1
A Franks hearing, prescribed in Franks v. Delaware, 438 U.S.
154 (1978), is primarily a vehicle for challenging a warrant by
impeaching the affiant. Mere inaccuracies, even negligent ones,
are not enough. The defendant must offer a basis for suspecting
both (1) that there were misstatements or material omissions that
were deliberate or reckless and (2) that if corrected the affidavit
would not have supported a finding of probable cause. Id. at 171-
72.
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cause issue is not pursued on appeal. Instead, after the guilty
verdict, the Franks hearing was sought on the ground that the
affidavit had omitted pertinent information undermining the
informant’s credibility. This motion was based both on information
obtained by defense counsel prior to trial and information obtained
during the course of trial.
The former consisted of a bevy of facts (some from the
prosecutor and some unearthed by defense counsel) concerning prior
crimes by the informant and his later employment by authorities as
an informant who might profit from providing useful information.
The facts had at most a remote bearing on credibility--none of the
crimes involved false statements and (expenses aside) the rewards
were for accurate information. But in any event Adams’s failure to
pursue the matter before trial, given that he had the information
then, forfeits his claim. Fed. R. Crim. Proc. 12(f); United States
v. Batista, 239 F.3d 16, 19 (1st Cir.), cert. denied, 122 S.Ct. 117
(2001).
During trial, the government produced one final piece of
information about the informant, namely, that he had agreed in his
deal with the government to commit no more crimes but had in fact
thereafter sold cocaine on three occasions. The government said
that the informant had so confessed the night before this
disclosure and, as the informant had been listed as a possible
witness, this new fact was proffered to satisfy Brady/Giglio
obligations. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v.
United States, 405 U.S. 150 (1972). Defense counsel then moved for
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a mistrial and a stay; both were denied but the court said that a
post-trial Franks motion could be filed.
The appeal on this point is only from the denial of the
new trial motion seeking a Franks hearing. The denial was patently
correct: there is no indication that the detective knew of the
informant’s new drug dealing when he made the affidavit. But what
is even plainer is that the informant’s own drug dealing and broken
promise, even if it had been fully disclosed, would have left in
the warrant ample facts, corroborated by police observations of the
house, to provide probable cause. See, e.g., United States v.
Paradis, 802 F.2d 553, 557-58 (1st Cir. 1986).
Finally, Adams says that the trial was tainted by four
different statements of the prosecutor in closing argument. This
is an uphill argument since the evidence against Adams was quite
powerful and included his confession. Worse still, three of the
four statements were not objected to and so are reviewable only for
plain error, which includes a stiff requirement for showing
prejudice. United States v. Taylor, 284 F.3d 95, 102 (1st Cir),
cert. denied, 122 S. Ct. 2612 (2002). And, as we will see, the
statements were in some measure a matter of the prosecutor fighting
fire with fire.
The first statement challenged reads as follows:
If ATF had wanted to arrest a bunch of people and
charge a lot of people instead of just Robert
Adams, they could have arrested James Pemberton.
They could have arrested Jason Antrade. They're
not here looking for numbers. They could have
arrested Manson Carpenter.
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"They’re not here looking for numbers" together with the
examples could be viewed as a form of vouching for the competence
and integrity of the police and probably should not have been said.
But it was provoked by the defense claim that the police ignored
other suspects. See United States v. Kirvan, 997 F.2d 963, 964-65
(1st Cir. 1993). More important, it was not objected to and the
idea that this statement--singly or with anything else at issue--
likely changed the outcome is quite implausible.
The second statement reads: "That’s good police work that
he [the detective] continued to look into this case . . . ." This
was a direct response to defense counsel’s claim that the further
investigation after Adams’s arrest demonstrated that the police had
doubts about Adams’s guilt. Given the context, we doubt the
rejoinder was improper at all; in substance it offered an innocent
inference to counter a sinister one. Certainly it was not plainly
error nor did it alter the outcome.
The third statement by the prosecutor was this: "We’re
not trying to prosecute anyone that is innocent." This should not
have been said because it arguably invited the jury to rely upon
the prosecutor’s implied expression of personal belief in Adams’s
guilt. But it was a tame version of this kind of mistake. Compare
United States v. Rosales, 19 F.3d 763, 767 (1st Cir. 1994). And
despite the lack of objection, the district court told the jury to
ignore the remark. Once again, there is no likelihood that the
remark altered the outcome.
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Finally, in his closing, defense counsel pointed to the
government’s failure to call the informant, saying: "He’s not a
witness here, and we don’t know why." The government answered that
the defense counsel knew of the informant before trial and "could
have called [him] if he wanted him." At that point defense counsel
objected, the court sustained the objection, and the judge
ultimately instructed the jury to disregard the instruction
"completely," explaining the defendant had no burden to call
anyone.
Frankly, we think that the district court, being
understandably cautious on the verge of a verdict, was kind to the
defendant. Unprovoked, the prosecutor’s statement could amount to
impermissible burden shifting. But here defense counsel invited
the jury to infer that the informant had evidence favorable to the
defense, and the prosecutor--in our view permissibly--replied that
any such evidence could have been secured by the defendant. Most
circuits, and (in an analogous case) the Supreme Court, share our
view that this is a fair response.2
In our tradition, defense counsel are allowed a good
measure of latitude in summing up to the jury and the defense here
seems to have made good use of this opportunity to sow doubt. But
2
See, e.g., United States v. Aldaco, 201 F.3d 979, 988 (7th
Cir. 2000); United States v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir.
1997), cert. denied, 522 U.S. 1047 (1998); United States v.
Williams, 990 F.2d 507, 509-10 (9th Cir), cert. denied, 510 U.S.
926 (1993); cf. United States v. Robinson, 485 U.S. 25, 27-28, 31
(1988) (upholding prosecutor's comment that defendant could have
explained his story to jury when defense counsel had asserted that
prosecution would not let the defendant testify).
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this also means that, in the tight confines of the closing
argument, prosecutors must make snap judgments as to how to
respond, applying standards (like "improper vouching") that in many
applications are far from crystal clear. Nothing in the
prosecutor’s few arguable lapses here warrants censure, let alone
a reversal.
Affirmed.
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