112 F.3d 32 (1st Cir. 1997), 96-1779, United States v. Alston

Docket Nº:96-1779.
Citation:112 F.3d 32
Party Name:UNITED STATES of America, Appellee, v. Richard ALSTON, Defendant, Appellant.
Case Date:May 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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112 F.3d 32 (1st Cir. 1997)

UNITED STATES of America, Appellee,


Richard ALSTON, Defendant, Appellant.

No. 96-1779.

United States Court of Appeals, First Circuit

May 5, 1997

Heard Feb. 7, 1997.

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Lois M. Lewis by Appointment of the Court, West Newton, MA, for appellant.

Paul G. Levenson, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on brief for the United States.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

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.

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

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weapon could be associated with any other crime.

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.

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...

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