USCA1 Opinion

[This opinion is For Pubication as of October 21, 1996.]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1093

UNITED STATES,

Appellee,

v.

RAYMOND J. BLAIS,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

_____________________

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

______________
Margaret E. Curran, Assistant
__________________

United States Attorney,

with

whom Sheldon Whitehouse, United States Attorney, and Stephanie S.

__________________
____________
Browne,

Assistant

United States

Attorney,

were

on brief

for

______
appellee.

____________________

August 28, 1996

____________________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

Defendant-appellant Raymond J.

Blais

("Blais")

appeals

922(g)(1), as well as his

his

conviction

under

18

U.S.C.

resulting sentence of 235 months in

federal corrections facility plus five years' supervised release.

We affirm the judgment of the district court in both regards.

I. BACKGROUND
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

of a firearm, in violation of 18 U.S.C.

1994,

Blais

filed a

motion to

922(g)(1).

suppress,

possession

On June 29,

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.

February

Dupuis

3,

1994, Providence

Police

("Officer Dupuis") and

Reserve

Officers Timothy

David Paolino ("Officer Paolino")

went to 160 Benedict Street, a Providence Housing Authority high-

rise

apartment

disturbance.

alleged that

and

building,

The

Blais had

Paolino and

headed for Blais's

hallway

response

complainant,

that he possessed a

Officer

in

to

Geraldine

McGill

threatened her verbally

firearm.

a security

apartment.

first, and he spotted

In

of

("McGill"),

and physically,

response, Officer Dupuis,

guard, Alan

Rivera ("Rivera"),

Officer Dupuis

a man, whom

-2-

report

walked down

the

he later learned was

Blais,

carrying

handgun.

apartment, Officers

after

Officer

which

again

the

knocked and

apartment's

the

man enter

knocked on the

police officers.

Failing to

announced

occupant

Dupuis again stated that it

obtain any

seeing

Dupuis and Paolino

announced that they were

response, they

After

asked

their

who

was the police.

further response, the officers

an

door and

receive a

identities,

was

there.

Failing to

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,

officers proceeded

about

the incident

living room

and

to question Blais, who

with

McGill.

At

dining room.

The

appeared intoxicated,

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,

conviction of

the parties

stipulated as to

Blais's prior

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

prison, as well as

a 5-year term of

supervised release and

statutory assessments.

-3-

II. DISCUSSION

in

the

II. DISCUSSION
__________

Blais

hinges

on

L pez,
_____

___

indictment,

makes four

his contention

types of

that, in

U.S.

___, 115

his

jury

S.

Ct.

instructions

argument.

The first

set

light

of United States v.
______________

1624,

1626-27 (1995),

his

his

are

and

conviction

unconstitutional, or, failing that, the government failed to meet

its

burden

under L pez
_____

interstate commerce.

denial

of

to

showing an

to suppress.

denial of his motion

Fourth, and finally, he

Third, he

challenges the

for exculpatory evidence.

argues that the district court

refusing to limit or identify which of Blais's

it would allow

effect on

Second, Blais contests the district court's

his motion

district court's

with respect

the government

to introduce if

erred by

prior convictions

he were to

deny

committing the present offense.

A.
A.

The Constitutionality of Section 922(g)(1),

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

Blais

922(g)(1)

makes four

related arguments

regarding section

and the issue of whether his conviction is pursuant to

a proper exercise of the power of the federal government.

Citing

L pez, ___ U.S. ___, 115 S. Ct. 1624, Blais argues that:
_____

(1) the

statute

under

which

unconstitutional; (2)

he

was

charged

his indictment

and

convicted

was defective for

is

lack of

any allegation of effect on interstate commerce; (3) the jury was

improperly

instructed in

substantial effect

court erred in

a manner that

omitted any

on interstate commerce; and

denying his

motion for a

element of

(4) the district

judgment of

acquittal

-4-

based on the

Government's failure to meet its

burden to show an

effect on interstate commerce.

In L pez,
_____

School Zones Act, 18

from possessing

the Supreme

U.S.C.

Court struck down

the Gun-Free

922(q), which prohibited

a gun while in a "school zone."

a person

L pez, ___ U.S.

_____

at ___, 115

F.3d 387,

S. Ct. at 1631; see United States v. McAllister, 77

___ ______________
__________

389 (1st Cir. 1996).

section 922(q),

The Court held

Congress exceeded

that in passing

its power under

the Commerce

Clause because that statute was

not

an

essential

part

of

larger

regulation of economic activity, in which

the regulatory scheme
unless

the

could be

undercut

intrastate

activity

regulated.

It

therefore,

sustained

under

cannot,

be

cases

upholding

regulations of activities that

arise out

of

or are

transaction,

our

were

connected
which

aggregate,

with a

commercial

viewed

in

substantially

the

affects

interstate commerce.

L pez, ___ U.S.

_____

at ___, 115

with respect to section

S. Ct. at

1631.

Blais's

argument

922(g)(1) is essentially that:

(1) the

statute provides that it is unlawful for a felon

to

ship

foreign

or transport
commerce,

or

affecting
commerce,
____________________

in

interstate or

possess
any

in
or
_______

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)

not assume

commerce"

(emphasis added); and (2)

that Congress

when

it said

must have meant

"affecting

firearm possession by a felon.

this court should

"affecting interstate
__________

commerce"

with respect

to

As a result, claims Blais, he was

charged pursuant to an unconstitutional statute.

-5-

However,

constitutionality

court.

Blais's

is foreclosed

Since L pez,
_____

challenge to the

challenge

to

by previous

this court has

the

decisions of

twice ruled

constitutionality of the

statute's

this

that a facial

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), 75 F.3d

_____________
_______

40,

U.S.

49 (1st cir. 1996) (citing Scarborough v. United States, 431

___________
_____________

563 (1977) (discussed in

___, 115

S. Ct. 1624 (1995))) ;

F.3d ___, 1996

WL 199620,

United States v.
_____________

L pez, ___ U.S.

_____

United States v. Abernathy, ___

_____________
_________

*2 (1st Cir.

1996) (rejecting

post-

L pez
_____

Commerce Clause-based

enact

922(g)(1)

challenge to

and 922(k) and

power of

Congress to

quoting Bennett's description

_______

of "hopeless[ness]")); see also United States v. Joost, ___ F.3d

_________ _____________
_____

___, No.

95-2032, slip op. at

implication of

still good

law after L pez.

_____

that here more

other circuit

challenges

McAllister,
__________

our holding

fully.

courts

to

In

in Bennett
_______

Bennett,
_______

387,

is

confronted

922(g)(1).

390 (11th

See
___

Cir.

1996).

that Scarborough
___________

75 F.3d at 49.

so doing, we are

that have

section

77 F.3d

17 (1st Cir. Aug. 7,

is

We state

in accord with

similar

The

the

post-L pez
_____

United
States
_______________

1996) (stating

v.

that

"[n]othing in L pez suggests that the 'minimal nexus' test should

_____

be changed"); United States v. Sorrentino,

______________
__________

(2d Cir. 1995);

United States v. Bell, 70

_____________
____

Cir. 1995); United States

_____________

72 F.3d 294,

296-97

F.3d 495, 497-98 (7th

v. Hinton, 69 F.3d 534, 1995 WL 623876

______

(per curiam) (unpublished decision

4th Cir. 1995), cert. denied,

____________

116 S. Ct. 1026 (1996); United States v. Bolton, 68 F.3d 396, 400
_____________
______

-6-

(10th Cir. 1995),

States
______

cert. denied,
____________

v. Shelton,
_______

66 F.3d

116 S. Ct.

991 (8th

966 (1996);

Cir. 1995)

United
______

(per curiam),

cert. denied, 116 S. Ct. 1364 (1996); United States v. Mosby, 60

____________
______________
_____

F.3d

454, 456 (8th Cir.),

United States v.
_____________

see also
________

1996)

note in

cert. denied, 116

____________

S. Ct. 938 (1996);

Hanna, 55 F.3d 1456, 1462 n.2

_____

United States v.
_____________

Spires, 79
______

(9th Cir. 1995);

F.3d 464,

466 (5th

(upholding the statute under plain error review).

passing that, confronting a

Cir.

We also

L pez-based challenge, this

_____

court also has upheld charges for possession of a firearm with an

obliterated

serial

constitutional,

number

under

and that statute's

18

U.S.C.

language, like

922(k)

as

the language

Blais

challenges, also makes it unlawful for a felon to "possess

in or

affecting commerce,

any firearm

or ammunition."

United
______

States v. D az-Mart nez, 71 F.3d 946, 953 (1st Cir. 1995).

______
_____________

Given the constitutionality of

that

valid,

the

indictment and

since

question.

the statute

jury that

both

the

tracked

jury

the

the statute, we believe

instructions are

language

of

statute

in

Furthermore, the district court read to the jury both

and the

indictment and specifically

as one of the

prosecution

had to

firearm had

been

prove

in

elements of the crime

beyond a

or affecting

reasonable

interstate
__________

district court stated that "[t]he Government may

with

the

similarly

respect to

this element

by proving

instructed the

in question, the

doubt that

commerce.

the

The

meet its burden

a connection

or link

between interstate

commerce and the possession

The court

to state

went on

that

"[i]t is

of the firearm."

sufficient for

the

-7-

Government

allegedly

previously,

to satisfy

possessed

travelled

this element to

by

the

Defendant,

across a

state

prove that

had[,]

line"

the firearm,

at

-- a

some

time

proposition

supported by the Supreme Court's holding in Scarborough, 431 U.S.

___________

at

that

575 (holding, under

proof that

interstate

the predecessor statute

the possessed

commerce was

to

firearm previously

sufficient

to

establish

922(g)(1),

travelled in

an

adequate

interstate nexus).

Blais also

allowed his motion

argues that the district

for a

judgment of acquittal

that the government's sole evidence

interstate

handgun.

alteration

conclude

commerce" was

Having

of

that

evidence

See
___

grounds

on the element of "affecting

his arguments

standard

of

proffered by

its required

commerce.

on the

out-of-state manufacture

the Scarborough
___________

sufficient to meet

interstate

the

already rejected

the

court should have

showing of

of

about L pez's
_____

minimal nexus,

the

government

minimal nexus

McAllister, 77 F.3d
__________

the

we

was

with

at 390 (evidence

that a gun had previously travelled in interstate commerce before

felon's possession

minimal

nexus).

held sufficient to meet

As a

result, we

required showing for

uphold the

district court's

denial of Blais's motion for a judgment of acquittal.

B.
B.

With

The Motion to Suppress

The Motion to Suppress

respect to the

motion to

suppress, we

review a

district court's findings of fact only for clear error, Bartelho,

________

71

F.3d at 441; United States v. Mart nez-Molina,

______________
_______________

726 (1st

64 F.3d 719,

Cir. 1995), but questions of law are subject to de novo

_______

-8-

review,

Ornelas
_______

Bartelho,
________

v.

United States,
______________

116

71 F.3d at 441; United States

_____________

S.

Ct.

1657 (1996);

v. Zapata, 18 F.3d 971,

______

975 (1st Cir. 1994).

Prior to

trial, Blais

moved to suppress

obtained during the officers' February 3 visit

Based on

the facts

district court

court

the

presented at

the

the evidence

to his apartment.

evidentiary hearing,

denied Blais's suppression motion.

the

The district

rested its conclusion on the findings that the totality of

circumstances

established

that

Blais

voluntarily

and

knowingly

invited the

police officers

into his

apartment, and

that the officers saw the gun lying on the bed in plain view.

motion

Officer

We agree

with the

to suppress.

Based

Paolino

gave his

voluntary.

on the testimony

and Rivera,

hearing reasonably

Blais

district court's denial

the

supported the

consent

Blais argues

evidence

of Officer Dupuis,

at the

district court's

to entry,

and

suppression

finding that

that that

consent

that the officers failed to

of his right to deny entry.

of Blais's

was

advise him

However, while the failure to inform

an individual that he has a right to withhold consent is a factor

to be weighed in

failure does

Schneckloth
___________

not

determining the issue of voluntariness,

preclude a

finding of

v. Bustamonte, 412 U.S.

__________

valid

consent.

such a

See
___

218, 245 (1973); Zapata, 18

______

F.3d at 977.

The district court also properly rejected any claim

of coercion.

While

inherently coercive

by

Blais claims

that

because he was a

two officers and a

the circumstances

were

69-year-old man confronted

security guard, the

evidence showed that

-9-

the three

men did not enter

own initiative.

until Blais invited them

in on his

As a result, we conclude that the district court

did

not commit error in finding that Blais admitted the officers

and the security guard into his apartment voluntarily.

The

district

suppression hearing

court

found

that

also showed that the

testimony

at

the

firearm discovered was

lying on the bed in plain view of the officers as they questioned

Blais.

Defendant's argument

that the district

court erred

in

making this finding is based on a challenge to the credibility of

the

officers

and

the

security guard.

However,

determinations are for the district court, not

United States v.
______________

Patrone, 948
_______

F.2d 813,

cert. denied, 504 U.S. 978 (1992).

____________

question

is,

as

Blais

argues, subject

us, to make.

816 (1st

And even if

to

credibility

See
___

Cir. 1991),

the testimony in

another

plausible

reading, the

district court's

interpretations

of the

choice of

evidence

cannot

one

of two

be clearly

competing

erroneous.

United States v. Cruz-Jim nez, 894 F.2d 1, 7 (1st Cir. 1990).

_____________
____________

Because we conclude that the district

court's findings

of invited entry and plain view were not erroneous, we affirm its

denial of Blais's motion to suppress.

C.
C.

Blais

quashing certain

The Motion for Exculpatory Evidence

The Motion for Exculpatory Evidence

contends

the

subpoenas issued

On appeal, Blais points

and reports

that

of the

district

for the

court

in

suppression hearing.

to quashed subpoenas for arrest

Providence Police Department,

report of the officers' interview with McGill.

-10-

erred

records

including the

First,

3500,

Blais argues

entitles

him to

these

that

the Jencks

documents.

Act, 18

However,

U.S.C.

the

Act

"establishes procedures whereby a criminal defendant may exercise

his

limited

government

States

Neal,
____

right

to

obtain

witnesses that are

to be used for

36 F.3d

previous

in the

statements

possession of

impeachment purposes."

1190, 1197

(1st Cir.

1994).

made

by

the United

United States v.
_____________

McGill was

not a

government

witness and did not

the witnesses

who did

testify.

testify at

The

statements of all

the suppression

hearing were

turned over.

Second,

Blais

information constituted

v.

Maryland,
________

However,

Brady
_____

373

U.S.

error

contends

83 (1963),

occurs

information that

Gilday
______

Callahan, 59
________

denied,
______

116 S. Ct. 1269

there is

a reasonable

the

material he was entitled

"material"

v.

that

when

(1996).

to under Brady
_____

for

impeachment

purposes.

the

government

suppresses

is favorable

F.3d 257,

sought-after

267

to the defense.

(1st Cir.

Information

probability that,

See
___

1995), cert.
_____

is "material" "if

had the

evidence been

disclosed to the defense, the result of the proceeding would have

been

different."

(1985).

United States
_____________

v. Bagley,
______

Blais has failed to articulate any

473 U.S.

667, 682

theory demonstrating

such a reasonable probability.

In

fact,

additional arrest

exist.

Blais has

records or police

Indeed,

exculpatory.

failed to

While

McGill's

her

-11-

that any

reports that he

statement

complaint

show

was

could

the

not

impetus

of the

seeks even

have

for

been

the

officers'

and the

security guard's

have had no relevance

to the issues at the

whether Blais admitted the

and

whether the

uphold

visit, her

statement could

suppression hearing:

officers to his apartment voluntarily

firearm was

the district court's

in plain

view.

As a

decision to quash

result, we

the subpoenas at

issue.

D.
D.

Blais also

failing

to

Blais's Prior Convictions

Blais's Prior Convictions

contends that

explain more

admissibility of

fully its

the district court

ruling

his prior convictions.

was rendered in response

The

erred by

with regard

to the

ruling in question

to Blais's motion in limine

criminal convictions greater than ten years old.

to exclude

The government

objected,

filing

memorandum

convictions

should

be

pursuant to

Federal Rule of

hearing on the motion,

the

exclusion of all

within the

his

term

previously.

for

arguing

impeachment

Evidence 609.

previous convictions save

those

number

of Blais's

less

previous

possession of firearms.

three convictions (for armed

Blais

of a

objection to

released from

than

By doing so, the government cleared the way

of

of

the

four which fell

Blais had been

convictions

that

In the course

the government withdrew its

for

involved the use or

ruled that

admissible

ten-year limit because

prison

exclusion

in support,

ten years

for the

convictions

The

that

district court

robbery, kidnapping and

driving away in an automobile) could come in.

The district court

explained its ruling to defense counsel as follows:

So

we're

left, [counsel],

previous convictions, none

with three

of which

are

-12-

greater than
robbery,

kidnapping

driving off
will

be

ten years

an

old.

The armed

and the

unlawfully

auto, which

admissible

to

I'm

ruling

impeach

the

credibility of Mr. Blais should he decide

to testify
what Mr.
Government
Court

to

under
Blais
may

609.

Depending

upon

says on

the stand,

the

permission of

the

seek

introduce

any

of

convictions under another rule.

the

other

Defense counsel sought further elaboration

asking

whether testimony denying

would be viewed

convictions.

by the court

The court

as to the last point,

the firearm

as opening the

responded:

possession charge

door to the

"read the Norton

______

other

case.

I'm

not going to do your homework for you."

Blais

argues that

United States v. Norton, 26

______________
______

little

court

guidance,

is vested

with

broad

felon-in-possession,

had

cryptic reference

to

Cir. 1994), provided

recognizes that

discretionary

Id. at 243.
___

Norton, like
______

court's

F.3d 240 (1st

since Norton
______

exclude evidence."

The defendant in

the

"[t]he district

power to

admit

or

Reading Norton, we do not agree.

______

Blais, was charged

_____

prior firearm

with being

conviction,

and had

succeeded

in

inadmissible

persuading

all his

old, including his

course

the

trial

prior convictions

prior firearm

court

to

exclude

greater than

conviction.

as

ten years

However, in

the

of his testimony, the defendant in Norton denied not only

______

possessing

the gun

identified in

denied having ever possessed a

the indictment,

gun in his life.

sought and was granted permission

but in

fact

The prosecutor

to introduce the prior firearm

conviction

to

contradict

the defendant's

testimony.

In

upholding the district court's ruling, this court

-13-

false

and

material

explained that "[o]nce Norton denied that he had ever possessed a

gun, he

opened the door

firearm possession."

complain

to the

issue of his

Id. at 244.
___

that he was unfairly

hardly

cryptic.

present

As a result, Norton could not

prejudiced by the introduction of

the conviction to show that he lied.

We conclude that

prior or

Id. at 244-45.
___

the district court's

explanation was

While it may have required that Blais's counsel

do some reading, that is certainly not reversible error.

III. CONCLUSION
III. CONCLUSION
__________

As

result of

the

foregoing, the

judgment

of the

district court is affirmed.

affirmed
________

-14-