USCA1 Opinion
August 17, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2418
UNITED STATES,
Appellee,
v.
DENNIS E. FRIEL,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Dennis E. Friel on brief pro se.
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Richard S. Cohen, United States Attorney, David R. Collins,
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Assistant United States Attorney, and F. Mark Terison, Assistant
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United States Attorney, on brief for appellee.
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Per Curiam. Appellant Dennis E. Friel was indicted
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by a federal grand jury with two counts of possession of
firearms by a person convicted of a felony in violation of 18
U.S.C. 922(g)(1) and 924(a)(2).1 Appellant was
convicted, after a jury trial, on both counts. He raises six
issues on appeal, all of which we reject for the following
reasons:
1. Appellant argues that his conduct does not come
within language of 922(g)(1) requiring that the possession
of the firearms be "in or affecting commerce." At trial, the
government's expert testified that one of the weapons had
been manufactured in Massachusetts in 1987 and the other had
been manufactured in Italy between 1951 and 1968; both
weapons, according to this witness, had traveled in
interstate commerce to arrive in Maine.
In United States v. Gillies, 851 F.2d 492 (1st
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Cir.), cert. denied, 488 U.S. 857 (1988), we addressed a
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similar argument. The defendant in Gillies had possessed in
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Massachusetts, in 1986, a gun that had, in 1977, travelled
from Brazil to Florida. The defendant argued that the in-
state possession of a weapon that had, at some time in the
past, arrived from out of state, did not meet the affecting
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1. Section 922(g)(1) provides in relevant part that "[i]t
shall be unlawful for any person . . . who has been convicted
in any court of . . . a crime punishable by imprisonment for
a term exceeding one year . . . to . . . possess in or
affecting commerce, any firearm. . . ."
commerce requirement. We rejected this interpretation of
922(g)(1). Id. at 493.
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We held that "possession of a gun that did travel
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interstate before the felon possessed it" satisfied
922(g)(1). Id. at 494. That is, the affecting commerce
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language includes "past or present effects." Id. (emphasis
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added). In so holding, we relied on Scarborough v. United
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States, 431 U.S. 563 (1977). In considering the predecessor
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to 922(g)(1), the Supreme Court held that "Congress sought
to reach possessions broadly, with little concern for when
the nexus with commerce occurred." Id. at 577. We cited
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Scarborough for the conclusion that "as long as the gun
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previously had travelled in interstate commerce," a felon in
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possession of it violated the statute. 851 F.2d at 494.
2. Appellant next asserts that the government
failed to prove not only that he "knowingly" possessed
firearms, but that he "knowingly" violated the law in doing
so. Appellant bases his argument on the language in the
indictment which states that appellant "knowingly possessed,
in and affecting commerce, a firearm . . . in violation of
Title 18. . . ." We have rejected this type of argument,
stating that "[t]his court, and every court to have
considered the issue, has held that the government need not
prove the defendant knew he was violating the federal
firearms law nor would `ignorance of the law' be a defense in
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such a prosecution." United States v. Ramos, 961 F.2d 1003,
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1005 (1st Cir.) (citing cases), cert. denied, 113 S. Ct. 364
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(1992).
3. Appellant argues generally that 922(g)(1) is
unconstitutional. Specifically, he asserts that the limits
imposed by 922(g)(1) violate the constitutional right to
bear arms. The Supreme Court plainly has held that the
Second Amendment -- "A well regulated Militia, being
necessary to the security of a free State, the right of
people to keep and bear Arms, shall not be infringed" --
applies only to firearms having a "reasonable relationship to
the preservation or efficiency of a well regulated militia. .
. ." United States v. Miller, 307 U.S. 174, 178 (1939); see
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also Lewis v. United States, 445 U.S. 55, 65 n.8 (1980)
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(legislative restrictions on the ability of a felon to
possess a firearm do not "trench upon any constitutionally
protected liberties").
Appellant's reliance on the Constitution of the
State of Maine is unavailing. See United States v. Minnick,
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949 F.2d 8, 10-11 (1st Cir. 1991) (Supremacy Clause of United
States Constitution prevents reliance on the qualified right
to bear arms contained in the New Hampshire Constitution as a
defense to 922(g)(1)), cert. denied, 112 S. Ct. 1698
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(1992). In any event, as the government points out, the
Maine Constitution does not prohibit the state from making it
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a crime for a convicted felon to possess a firearm. See
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State v. Brown, 571 A.2d 816, 817 (Me. 1990) ("no absolute
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right" to bear arms exists under Maine Constitution).
4. The district court denied appellant's motion,
made under Fed. R. Crim. P. 6(e)(3)(C)(i), to disclose all
grand jury proceedings leading up to his indictment. This
rule provides that disclosure of such proceedings may be made
"when so directed by a court preliminarily to or in
connection with a judicial proceeding." In support of his
motion, appellant stated that he felt "strongly" that the
prosecution had abused the grand jury proceedings in
procuring the indictment, that the prosecutor had used the
grand jury to prepare his case, and that his publicized
religious views and long hair may have prejudiced the grand
jury against him. He also requested the grand jury material
so that he could make sure that the grand jury had understood
their function and had not been merely a "rubber stamp" of
the prosecutor; he also sought to ascertain whether the
prosecutor had disclosed any grand jury material to the local
authorities. Finally, he cited to his right to inspect the
grand jury list to challenge the jury selection process.
"The Supreme Court repeatedly has recognized the
importance of secrecy in grand jury proceedings, even after,
as in this case, the grand jury has concluded its function."
United States v. McMahon, 938 F.2d 1501, 1504 (1st Cir.
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1991). Thus, to be entitled to grand jury material under
Rule 6(e), appellant must show a "particularized need" for
the material requested, see Pittsburgh Plate Glass Co. v.
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United States, 360 U.S. 395, 399 (1959), or that "some
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possible grounds for dismissal would be produced." See
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United States v. Llaca Orbiz, 513 F.2d 816, 818-19 (1st
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Cir.), cert. denied, 423 U.S. 861 (1975). Further, appellant
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bears the burden of showing that "the need for disclosure is
greater than the need for continued secrecy and that [the]
request is structured to cover only material so needed." See
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Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222
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(1979) (footnote omitted).
The district court determined that appellant's
request, based upon his strong feelings, did not meet the
above standard. A district court has "substantial
discretion" to decide whether to release grand jury material.
Id. at 223. We do not think the district court abused its
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discretion in this case. First, appellant's request was
based only upon his desire to review the proceedings to
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search for impropriety. This is insufficient. See Walsh v.
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United States, 371 F.2d 436, 437 (1st Cir.) (per curiam)
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(where defendant "merely asked [for] an opportunity to
examine the [grand jury] records without specifying any
reason," no abuse of discretion in denying request), cert.
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denied, 387 U.S. 947 (1967). Further, appellant's "reasons"
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do not rise to the level of stating "particularized" needs.
Rather, his statements are conclusory in nature and he cites
to no evidence of a specific nature to support his requests;
thus, the "presumption of regularity" remains. See Llaca
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Orbiz, 513 F.2d at 819 (where no evidentiary showing
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proffered concerning allegation that secrecy of grand jury
had been breached, grand jury proceedings presumed regular).
Finally, as for appellant's challenge to the selection
process, it does not contain any indication concerning what
rights appellant believes the selection process violated.
See id. at 819 n.5.
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5. Appellant was arrested at his daughter's
apartment after a warrant for his arrest had issued. He
moved, in the trial court, to suppress his arrest on the
ground that federal agents had entered his daughter's
apartment, despite her objection, without a search warrant
and without adequate notice. The district court denied the
suppression motion, in part, because appellant had no
"constitutionally protected interest" to assert. We agree.
The Supreme Court has held that it is proper to
allow "only defendants whose Fourth Amendment rights have
been violated to benefit from the [exclusionary] rule's
protection." See Rakas v. Illinois, 439 U.S. 128, 134
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(1978). That is, a defendant who claims that a search of
another's premises was illegal has not had his own Fourth
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Amendment rights violated. Id. To meet this "standing"
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requirement, appellant "ha[s] the burden of showing . . .
that he had a reasonable expectation of privacy" in the
premises searched. See United States v. Aguirre, 839 F.2d
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854, 859 (1st Cir. 1988). Such a showing is made where,
among other things, a defendant presents evidence that he or
she lived in the premises searched, kept personal belongings
there or had the ability to restrict access to the premises.
Id.
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Appellant has not alleged that any of the above
factors were present. He only argued below, as he does on
appeal, the merits of the Fourth Amendment claim -- that the
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search was illegal. However, under Rakas and Aguirre, the
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district court correctly refrained from reaching the merits
of the challenged search where appellant failed to establish
a privacy interest in his daughter's apartment. See Rakas,
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439 U.S. at 150; Aguirre, 839 F.2d at 859.
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6. Finally, appellant claims that, before trial
started, the district court denied him the right to be
presumed innocent. Appellant alleges that this occurred when
the court asked the jury the following question: "Has any
juror already reached an opinion as to the guilt or innocence
of this defendant?" According to appellant, each juror
answered "no" by the shaking of heads or by silence. He
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argues that by answering "no," the jury was expressing their
opinion that they did not, in fact, presume him innocent.
We reject this tortured interpretation. Plainly,
by answering in the negative, the jurors were indicating that
they had not formed any opinions concerning appellant's guilt
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or innocence. In any event, just prior to the question, the
court gave the following instruction:
I will instruct you that under the
[C]onstitution and laws of the United
States, every defendant is presumed to be
innocent, and that your duty as a juror
will be to return a verdict of not guilty
unless you are convinced beyond a
reasonable doubt on the evidence and law
admitted in this case that the government
has proved that the defendant is guilty.
It is hard to perceive how the court could have made plainer
the presumption of innocence.
For the foregoing reasons, the judgment of
conviction is affirmed. Appellant's motion to strike the
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government's brief is denied.
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