U.S. v. Bartelho
| Decision Date | 06 October 1995 |
| Docket Number | No. 95-1624,95-1624 |
| Citation | 71 F.3d 436 |
| Parties | 43 Fed. R. Evid. Serv. 501 UNITED STATES, Appellee, v. Thomas BARTELHO, Defendant-Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Christopher W. Dilworth, Falmouth, Me., by Appointment of the Court, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and Richard W. Murphy, Assistant United States Attorney, were on brief for appellee.
Before TORRUELLA, Chief Judge, STAHL and LYNCH, Circuit Judges.
Defendant-appellant Thomas Bartelho ("Bartelho") challenges his conviction for possession of a firearm by a convicted felon under 18 U.S.C. Secs. 922 and 924. After a jury trial in the United States District Court for the District of Maine, Bartelho was sentenced on May 26, 1995 to 120 months incarceration. We affirm his conviction.
Viewed in the light most favorable to the government, United States v. Robles, 45 F.3d 1, 2 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1416, 131 L.Ed.2d 300 (1995), a reasonable jury could have found the following facts.
At about 9:20 a.m. on Saturday, July 2, 1994, the Windham Police Department received a call from Lori Daigle ("Daigle"), the resident of the first floor apartment in a two-unit residence on Route 115 in Windham. Daigle reported an ongoing disturbance in the upstairs unit. Bartelho, who lived with his girlfriend Patricia Harris ("Harris") and their two young children, rented that apartment (the "Harris-Bartelho apartment"). Daigle stated to the dispatcher that one of her upstairs neighbors, Harris, had complained to her at 2:00 a.m. of being assaulted by her boyfriend, identified then as "Tommy." Daigle also told the dispatcher that Harris had asked her to take her to the hospital. Furthermore, Daigle reported that Harris expressed fear for her 18-month-old child, and that "Tommy" had chased her down the road with a loaded rifle. Daigle also explained to the dispatcher that she had not heard the boyfriend leave, and so he must still have been upstairs.
Four Windham police officers were dispatched to the scene. Meanwhile, dispatcher John Perruzzi tried to reach Harris by phone in the Harris-Bartelho apartment. Finding the line busy, he had the phone company break in, and upon reaching Harris, convinced her to walk out of the building to talk with the officers waiting outside.
Harris spoke to Sergeant David Thomas and Officer Raymond Williams. Officer Williams told Harris that the police were responding to a report that she had been assaulted and threatened with a firearm. Harris answered that she had had an argument with her boyfriend but that he had left 30 minutes previously. The officers observed that Harris' eyes were puffy, that she appeared nervous, and that she would not make eye contact with them. In accord with their domestic violence training, the officers concluded that Harris was protecting Bartelho, possibly out of fear of reprisal. In view of Daigle's report, they did not believe Harris' statement, and instead asked for her permission to enter the Harris-Bartelho apartment, which she denied.
Sergeant Thomas then told Harris that the officers would enter the apartment without her permission. Several factors persuaded the officers to conduct a warrantless search, including their belief that Harris was lying to protect Bartelho, Daigle's statement that Bartelho remained in the apartment, the fact that Route 115 is a busy highway where the town's Fourth of July parade was about to begin, and the presence of other dwellings nearby. As they later testified, they concluded that if the defendant were allowed to remain in the apartment, a large number of people would be exposed to the risk of harm.
Officer Williams and Sergeant Thomas climbed the stairway that led to the Harris-Bartelho apartment's main entrance. They entered the unlocked front door and searched the premises. Officer Williams checked the back porch, from which an enclosed stairway leading to the ground level constituted a second escape route from the apartment. Officers on the ground watched both exits as the search took place. After Sergeant Thomas and Officer Williams failed to find the suspect in the apartment, Officer Williams checked the back porch more carefully, and noticed a loaded semiautomatic rifle on top of a stove on the porch. Officer Williams looked down the porch stairway, and called out the name "Tommy," whereupon Thomas Bartelho emerged from his hiding place below.
On July 6, 1994, a warrant was executed authorizing a search of the Bartelho-Harris apartment for evidence of bank robbery. Part of the basis for the warrant was the FBI's belief that the weapon found during the earlier, warrantless search ("the July 2 search") was the same as the one that had been used in a series of bank robberies. Pursuant to the warrant, another search was conducted on July 7 ("the July 7 search"), which turned up additional items including a quantity of ammunition and a stock and case for a rifle.
On appeal, Bartelho contends that four issues require that we overturn his conviction. First, he argues that the government failed to prove that his firearm civil rights had not been restored, as he asserts it was required to do. Second, he contends that the district court wrongly denied his motion to suppress evidence found during the July 2 and July 7 searches. Third, he claims that the district court's jury procedures were improper. Fourth, and finally, he asserts that the district court erred in allowing testimony that he threatened to kill Harris.
Bartelho appeals his conviction under 18 U.S.C. Sec. 922(g)(1) (1994), which provides that it is unlawful for anyone "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to possess ... any firearm." Bartelho's last conviction before the instant crime was in 1990, when he served one year of a five-year prison sentence. As noted in the facts, the police discovered a semiautomatic rifle during their search of the Harris-Bartelho apartment in close proximity to the place where they also discovered defendant-appellant Bartelho, and at trial the government presented Harris' taped pretrial statement that Bartelho had threatened her while holding this weapon.
According to Bartelho, the district court erred in denying his motion to dismiss, which contended (1) that the government was required to prove that his right to bear arms had not been restored by the State of Rhode Island, and (2) that the government failed to carry this purported burden. Bartelho reiterates this argument on appeal. The argument depends on his interpretation of 18 U.S.C. Sec. 921(a)(20) (1994), which defines the term "crime punishable by imprisonment for a term exceeding one year" in Sec. 922(g)(1) as follows:
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Bartelho argues that because Rhode Island has provided for possible restoration of his civil right to carry a firearm, to convict him under Sec. 922(g)(1), the government bears the burden of showing that such restoration has not occurred. In short, Bartelho proposes that we treat this showing as an element of the offense.
We reject Bartelho's argument because we conclude that a showing that the right to carry a firearm has not been restored is not an element of a Sec. 922(g) violation. In United States v. Ramos, 961 F.2d 1003, 1006 (1st Cir.1992), we read Sec. 922(a)(1) to require proof of three elements:
(1) that the accused is a convicted felon;
(2) who knowingly possessed a firearm;
(3) which was connected with interstate commerce.
Id. at 1006; see also United States v. Flower, 29 F.3d 530, 534 (10th Cir.1994) (citing United States v. Shunk, 881 F.2d 917, 921 (10th Cir.1989)); United States v. Sherbondy, 865 F.2d 996, 1001-03 (9th Cir.1988).
While neither Sec. 921(a)(20) nor Sec. 922(g)(1) explicitly describes the role that the Sec. 921(a)(20) definition should play or specifies who must initially raise or ultimately bear the burden of proof on the issue of the predicate conviction's continuing vitality, we conclude that Sec. 921(a)(20) is merely a legal definition for the phrase "conviction for a term exceeding one year" in Sec. 922(g)(1). Indeed, the title to 18 U.S.C. Sec. 921 is "Definitions." Furthermore, Sec. 921(a)(20) begins with the words "[t]he term 'crime punishable by imprisonment for a term exceeding one year' does not include," and is followed by two exceptions. Thus, Sec. 921(a)(20) serves to narrow the class of prior convictions down to a smaller class of convictions that may serve as predicate convictions under Sec. 922(g)(1). To treat Sec. 921(a)(20) as a legal definition accords with the approaches taken explicitly by two other circuits, see United States v. Jackson, 57 F.3d 1012, 1016 (11th Cir.1995); Flower, 29 F.3d at 534; United States v. Clark, 993 F.2d 402, 406 (4th Cir.1993), and implicitly by several others, see United States v. Frushon, 10 F.3d 663, 665-66 (9th Cir.1993); Martin v. United States, 989 F.2d 271, 273 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993); United States v. Cassidy, 899 F.2d 543, 545 (6th Cir.1990).
We are persuaded by the approach of United States v. Flower. The significance of Sec. 921(a)(20)'s definitional nature is that the trial judge bears the responsibility of...
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