U.S. v. Blais, 95-1093

• Decision Date: 03 June 1996
• Docket Number: No. 95-1093,95-1093
• Citation: 98 F.3d 647
• Parties: UNITED STATES, Appellee, v. Raymond J. BLAIS, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 647

98 F.3d 647

UNITED STATES, Appellee, v. Raymond J. BLAIS, Defendant-Appellant.

No. 95-1093.

United States Court of Appeals First Circuit.

Heard June 3, 1996.

Decided Aug. 28, 1996.

John J. Barter, by Appointment of the Court, Boston, MA, for appellant.

Margaret E. Curran, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, and Stephanie S. Browne, Assistant United States Attorney, Providence, RI, were on brief, for appellee.

TORRUELLA, Chief Judge.

Defendant-appellant Raymond J. Blais ("Blais") appeals his conviction under 18 U.S.C. § 922(g)(1), as well as his resulting sentence of 235 months in a federal corrections facility plus five years' supervised release. We affirm the judgment of the district court in both regards.

I. BACKGROUND

On February 3, 1994, Blais was arrested in Providence, Rhode Island, after Providence police discovered a firearm in his apartment. On May 27, 1994, a federal grand jury returned a one-count indictment charging Blais with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On June 29, 1994, Blais filed a motion to suppress, which was denied on October 12, 1994.

Viewed in the light most favorable to the verdict, United States v. Bartelho, 71 F.3d 436, 438 (1st Cir.1995), the following facts could have been found by a reasonable jury. On February 3, 1994, Providence Police Reserve Officers Timothy Dupuis ("Officer Dupuis") and David Paolino ("Officer Paolino") went to 160 Benedict Street, a Providence Housing Authority high-rise apartment building, in response to a report of a disturbance. The complainant, Geraldine McGill ("McGill"), alleged that Blais had threatened her verbally and physically, and that he possessed a firearm. In response, Officer Dupuis, Officer Paolino and a security guard, Alan Rivera ("Rivera"), headed for Blais's apartment. Officer Dupuis walked down the hallway first, and he spotted a man, whom he later learned was Blais, carrying a handgun. After seeing the man enter an apartment, Officers Dupuis and Paolino knocked on the door and announced that they were police officers. Failing to receive a response, they again knocked and announced their identities, after which the apartment's occupant asked who was there. Officer Dupuis again stated that it was the police. Failing to obtain any further response, the officers knocked and announced themselves a third time. In response to another inquiry, Officer Dupuis stated that it was the police and that the occupant should open the door. At this point, Blais opened the door and invited them in, saying, "Come on in, I'll talk to you in my apartment."

Officers Dupuis and Paolino, and then later Rivera, entered the apartment, which consisted of a single open room that functioned as a bedroom, living room and dining room. The officers proceeded to question Blais, who appeared intoxicated, about the incident with McGill. At some point during this questioning, Blais sat down on the corner of the bed, and Officer Dupuis spotted a firearm lying on the bed behind Blais.

At trial, the parties stipulated as to Blais's prior conviction of a crime punishable by a term of more than one year in prison prior to February 3, 1994, and on November 8, 1994, the jury returned a verdict of guilty on the indictment's lone count. On January 11, 1995, Judge Lisi sentenced Blais to 235 months in prison, as well as a 5-year term of supervised release and the statutory assessments.

II. DISCUSSION

Blais makes four types of argument. The first set hinges on his contention that, in light of United States v. Lpez, 514 U.S. 549, ---- - ----, 115 S.Ct. 1624, 1626-27, 131 L.Ed.2d 626 (1995), his indictment, his jury instructions and his conviction are unconstitutional, or, failing that, the government failed to meet its burden under Lpez with respect to showing an effect on interstate commerce. Second, Blais contests the district court's denial of his motion to suppress. Third, he challenges the district court's denial of his motion for exculpatory evidence. Fourth, and finally, he argues that the district court erred by refusing to limit or identify which of Blais's prior convictions it would allow the government to introduce if he were to deny committing the present offense.

A. The Constitutionality of Section 922(g)(1), Interstate Commerce and Related Arguments

Blais makes four related arguments regarding section 922(g)(1) and the issue of whether his conviction is pursuant to a proper exercise of the power of the federal government. Citing Lpez, 514 U.S. 549, 115 S.Ct. 1624, Blais argues that: (1) the statute under which he was charged and convicted is unconstitutional; (2) his indictment was defective for lack of any allegation of effect on interstate commerce; (3) the jury was improperly instructed in a manner that omitted any element of substantial effect on interstate commerce; and (4) the district court erred in denying his motion for a judgment of acquittal based on the Government's failure to meet its burden to show an effect on interstate commerce.

In Lpez, the Supreme Court struck down the Gun-Free School Zones Act, 18 U.S.C. § 922(q), which prohibited a person from possessing a gun while in a "school zone." Lpez, 514 U.S. at ----, 115 S.Ct. at 1631; see United States v. McAllister, 77 F.3d 387, 389 (1st Cir.1996). The Court held that in passing section 922(q), Congress exceeded its power under the Commerce Clause because that statute was

not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Lpez, 514 U.S. at ----, 115 S.Ct. at 1631. Blais's argument with respect to section 922(g)(1) is essentially that: (1) the statute provides that it is unlawful for a felon

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearms or ammunition which has been shipped or transported in interstate commerce,

18 U.S.C. 922(g)(1) (emphasis added); and (2) this court should not assume that Congress must have meant "affecting interstate commerce" when it said "affecting commerce" with respect to firearm possession by a felon. As a result, claims Blais, he was charged pursuant to an unconstitutional statute.

However, Blais's challenge to the statute's constitutionality is foreclosed by previous decisions of this court. Since Lpez, this court has twice ruled that a facial challenge to the constitutionality of the statute at issue, 18 U.S.C. 922(g)(1), is "hopeless on ... the law." United States v. Bennett, 75 F.3d 40, 49 (1st Cir.1996) (citing Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) (discussed in United States v. Lpez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995))); United States v. Abernathy, 83 F.3d 17, 19 (1st Cir.1996) (rejecting post-Lpez Commerce Clause-based challenge to power of Congress to enact §§ 922(g)(1) and 922(k) and quoting Bennett 's description of "hopeless[ness]"); see also United States v. Joost, 92 F.3d 7, 14 (1st Cir.1996). The implication of our holding in Bennett is that Scarborough is still good law after Lpez. Bennett, 75 F.3d at 49. We state that here more fully. In so doing, we are in accord with the other circuit courts that have confronted similar post-Lpez challenges to section 922(g)(1). See United States v. McAllister, 77 F.3d 387, 390 (11th Cir.1996) (stating that "[n]othing in Lpez suggests that the 'minimal nexus' test should be changed"); United States v. Sorrentino, 72 F.3d 294, 296-97 (2d Cir.1995); United States v. Bell, 70 F.3d 495, 497-98 (7th Cir.1995); United States v. Hinton, 69 F.3d 534, 1995 WL 623876 (per curiam) (unpublished decision 4th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1026, 134 L.Ed.2d 104 (1996); United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); United States v. Shelton, 66 F.3d 991 (8th Cir.1995) (per curiam), cert. denied, --- U.S. ----, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996); United States v. Mosby, 60 F.3d 454, 456 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 938, 133 L.Ed.2d 864 (1996); United States v. Hanna, 55 F.3d 1456, 1462 n. 2 (9th Cir.1995); see also United States v. Spires, 79 F.3d 464, 466 (5th Cir.1996) (upholding the statute under plain error review). We also note in passing that, confronting a Lpez-based challenge, this court also has upheld charges for possession of a firearm with an obliterated serial number under 18 U.S.C. § 922(k) as constitutional and that statute's language, like the language Blais challenges, also makes it unlawful for a felon to "possess in or affecting commerce, any firearm or ammunition." United States v. Daz- Martnez, 71 F.3d 946, 953 (1st Cir.1995).

Given the constitutionality of the statute, we believe that the indictment and the jury instructions are similarly valid, since both tracked the language of the statute in question. Furthermore, the district court read to the jury both the statute and the indictment and specifically instructed the jury that as one of the elements of the crime in question, the prosecution had to prove beyond a reasonable doubt that the firearm had been in or affecting interstate commerce. The district court stated that "[t]he Government may meet its burden with respect to this element by proving a connection or link between interstate commerce and the possession of the firearm." The court went on to state that "[i]t is sufficient for the Government to satisfy this element to prove that the firearm, allegedly possessed by the Defendant, had[,] at some time previously,...