U.S. v. Adams, 02-1007.

• Decision Date: 20 September 2002
• Docket Number: No. 02-1007.,02-1007.
• Citation: 305 F.3d 30
• Parties: UNITED STATES of America, Appellee, v. Robert J. ADAMS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

305 F.3d 30

UNITED STATES of America, Appellee, v. Robert J. ADAMS, Defendant, Appellant.

No. 02-1007.

United States Court of Appeals, First Circuit.

Heard August 1, 2002.

Decided September 20, 2002.

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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.

Before BOUDIN, Chief Judge, GIBSON,^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

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 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 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, 113 S.Ct. 191, 121 L.Ed.2d 135 (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.

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 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, 118 S.Ct. 1911, 141 L.Ed.2d 111 (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, 111 S.Ct. 2661, 115 L.Ed.2d 808 (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 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, 112 S.Ct. 611, 116 L.Ed.2d 633 (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, 111 S.Ct 2053, 114 L.Ed.2d 458 (1991). The district court did not abuse its discretion in refusing the request for more questioning.

Adams then attacks the district court refusal to hold a Franks hearing designed to challenge the search warrant.¹ The...