USCA1 Opinion
[NOT FOR PUBLICATION]
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No. 92-1995
UNITED STATES,
Appellee,
v.
PETER A. LEBON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jose Antonio Fuste, U.S. District Judge] ___________________
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Before
Breyer, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
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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. ______
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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
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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 ____________
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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.
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(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. ________
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