U.S. v. Alston

• Decision Date: 07 February 1997
• Docket Number: No. 96-1779,96-1779
• Citation: 112 F.3d 32
• Parties: 47 Fed. R. Evid. Serv. 69 UNITED STATES of America, Appellee, v. Richard ALSTON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 32

112 F.3d 32

47 Fed. R. Evid. Serv. 69

UNITED STATES of America, Appellee, v. Richard ALSTON, Defendant, Appellant.

No. 96-1779.

United States Court of Appeals First Circuit.

Heard Feb. 7, 1997.

Decided May 5, 1997.

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 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 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 suspicion based on the informant's information to conduct a Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (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, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612 (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 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 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...