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USCA1 Opinion

August 17, 1993


[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2418
UNITED STATES,
Appellee,
v.
DENNIS E. FRIEL,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Stahl, Circuit Judges.
______________
____________________

Dennis E. Friel on brief pro se.


_______________
Richard S. Cohen, United States Attorney, David R. Colli
__________________
________________
Assistant United States Attorney, and F. Mark Terison, Assist
________________
United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
__________
by

a federal

Appellant Dennis E. Friel was indicted

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

convicted, after a jury trial, on both counts.


issues

on appeal, all of

which we reject

was

He raises six

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."


government's

expert testified

that one

of the

At trial, the
weapons had

been manufactured in Massachusetts in


been

manufactured

weapons,

in

according

Italy
to

1987 and the other had

between 1951

this

witness,

and
had

1968;

both

traveled

in

interstate commerce to arrive in Maine.


In

United States
_____________

Cir.), cert. denied,


_____________
similar argument.

488 U.S.

state

Gillies, 851
_______

F.2d 492

857 (1988),

(1st

we addressed

The defendant in Gillies had possessed in


_______

Massachusetts, in 1986,
from

v.

Brazil to Florida.

a gun that

The defendant argued

possession of a weapon

past, arrived from out

had, in 1977,

that had, at

travelled

that the in-

some time in the

of state, did not meet

the affecting

____________________
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.
922(g)(1).

Id. at 493.

We rejected this

interpretation of

___
We held that
interstate

before

922(g)(1).

Id.
___

the

felon

at 494.

language includes
added).

"possession of a gun

That

In so holding,

is, the

satisfied

affecting commerce

we relied on
In

Id. (emphasis
___

Scarborough v. United
___________
______

considering the predecessor

922(g)(1), the Supreme Court held that "Congress sought

to reach

possessions broadly,

the nexus

with little concern

with commerce occurred."

Scarborough
___________

for the

conclusion

previously had travelled in


__________

Id.
___

2.
failed

to

not

Appellant

only that

indictment

bases his

stating

. . ."
that

he

that

the government

"knowingly"

possessed

violated the law in

argument on

doing

the language

We have

"[t]his

a firearm . .

in the

court,

and

every

has held that the

prove

knew

defendant

. in violation of

rejected this type

considered the issue,


the

gun

which states that appellant "knowingly possessed,

and affecting commerce,

Title 18.

as the

851 F.2d at 494.

asserts

firearms, but that he "knowingly"


so.

long

We cited

interstate commerce," a felon in

Appellant next
prove

for when

at 577.

that "as

possession of it violated the statute.

in

it"

"past or present effects."


____

States, 431 U.S. 563 (1977).


______
to

possessed

that did travel


___

he

was

of argument,

court

to

have

government need not

violating

the

federal

firearms law nor would `ignorance of the law' be a defense in

-3-

such

a prosecution."

United States v. Ramos, 961 F.2d 1003,


_____________
_____

1005

(1st Cir.) (citing cases), cert. denied, 113 S. Ct. 364


____________

(1992).
3.

Appellant argues

unconstitutional.

Specifically, he

imposed by

922(g)(1)

bear

The

Second

arms.

Amendment

necessary
people

generally that

922(g)(1) is

asserts that the

violate the constitutional

Supreme Court

plainly

--

regulated

"A

to

the security

to keep

and bear

well
of a

free

Arms, shall

right to

has held

that the

Militia,

State, the
not be

limits

being
right of

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,


_____________
______

also
____

Lewis
_____

(legislative

v. United States, 445


______________
restrictions

on

the

U.S.

178 (1939); see


___

55, 65

ability of

n.8 (1980)
a

felon

to

possess a

firearm do

not "trench upon

any constitutionally

reliance on

Constitution of

protected liberties").
Appellant's
State

of Maine is unavailing.

the

the

See United States v. Minnick,


___ _____________
_______

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

(1992).

In

922(g)(1)),
any event,

cert. denied,
_____________
as the

112 S.

Ct.

government points

1698

out, the

Maine Constitution does not prohibit the state from making it

-4-

a crime
State
_____

for a convicted
v. Brown, 571 A.2d
_____

felon to

possess a

816, 817 (Me.

firearm.

See
___

1990) ("no absolute

right" to bear arms exists under Maine Constitution).


4.

The

district court denied

made under

Fed. R. Crim.

grand jury

proceedings leading up

appellant's motion,

P. 6(e)(3)(C)(i), to

disclose all

to his indictment.

This

rule provides that disclosure of such proceedings may be made


"when

so

directed

connection with
motion,

court

jury

preliminarily

a judicial proceeding."

had

procuring the

that he

abused

the

to prepare

against him.

his

to

In support

felt "strongly"

grand

indictment, that

religious views and


jury

appellant stated

prosecution

grand

by

jury

long hair may have

that

in

of his
that the

proceedings

the prosecutor had

case, and

or

in

used the

his publicized

prejudiced the grand

He also requested the grand jury material

so that he could make sure that the grand jury had understood
their
the

function and had not


prosecutor;

he also

been merely a
sought

to

"rubber stamp" of

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

importance of secrecy in
as

repeatedly has

recognized the

grand jury proceedings, even after,

in this case, the grand jury has concluded its function."

United States
______________

v. McMahon,
_______

938

-5-

F.2d 1501,

1504

(1st Cir.

1991).

Thus,

Rule 6(e),
the

to be

entitled to grand

appellant must

material requested,

United States, 360


______________
possible

grounds

United States v.
______________

jury material

show a "particularized

need" for

see Pittsburgh Plate Glass Co. v.


___ ____________________________

U.S.

395,

399

for dismissal

(1959), or

would

Llaca Orbiz, 513


____________

be

F.2d

Cir.), cert. denied, 423 U.S. 861 (1975).


____________
bears

under

that

"some

produced."

See
___

816, 818-19

(1st

Further, appellant

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
___

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222
________________
______________________
(1979) (footnote omitted).
The

district

request, based
above

court

upon his

standard.

determined

that

appellant's

strong feelings,

did not

district

has

court

meet the

"substantial

discretion" to decide whether to release grand jury material.


Id. at
___

223.

discretion
based

only

We do
in this
upon his

not think the district


case.

First,

desire

search
______

for impropriety.

United

States, 371

court abused its

appellant's request

to review

the

This is insufficient.

F.2d 436,

437 (1st

was

proceedings to
__
See Walsh v.
___ _____

Cir.) (per

curiam)

______________
(where

defendant

examine

the

reason," no

"merely

[grand

jury]

abuse of

denied, 387 U.S. 947


______

asked

[for]

records

an

opportunity

without specifying

discretion in denying
(1967).

to
any

request), cert.
_____

Further, appellant's "reasons"

-6-

do not rise to
Rather,
to

the level of stating

"particularized" needs.

his statements are conclusory in nature and he cites

no evidence of a specific nature to support his requests;

thus,

the "presumption

Orbiz,
_____

513

F.2d

at

proffered concerning

819

as

process, it
rights

for

(where

See id. at 819 n.5.


___ ___

See Llaca
___ _____

evidentiary
secrecy of

showing

grand jury

jury proceedings presumed regular).

appellant's

challenge

does not contain any

appellant

remains.

no

allegation that

had been breached, grand


Finally,

of regularity"

believes the

to

the

selection

indication concerning what


selection

process violated.

5.
apartment

Appellant

after a

moved,

in the

ground

that

apartment,

was

arrested

warrant for

trial court,
federal

his arrest

to suppress

agents

had

despite her objection,

and without adequate notice.


suppression

motion,

in

at

his

had issued.
his arrest

entered
without a

his

allow
been

violated

to

part,

because

from the

protection."

See Rakas
___ _____

(1978).

is, a defendant

That

another's premises

daughter's

appellant

held that it

whose Fourth

benefit

on the

The district court denied

Court has

"only defendants

He

search warrant

"constitutionally protected interest" to assert.


The Supreme

daughter's

v.

We agree.

[exclusionary]

has not

no

is proper

439 U.S.

who claims that

was illegal

had

Amendment rights

Illinois,
________

the

to
have

rule's

128,

134

a search of

had his own


___ ___

Fourth

-7-

Amendment

rights

violated.

requirement, appellant

Id.
___

"ha[s] the

To meet

this "standing"

burden of showing

. .

that

he had

reasonable expectation

premises searched.
854,

859 (1st

See United States


___ _____________

Cir. 1988).

Such

of

privacy" in

v. Aguirre, 839
_______

a showing is

there

F.2d

made where,

among other things, a defendant presents evidence that


she lived in the

the

he or

premises searched, kept personal belongings

or had the ability to restrict access to the premises.

Id.
___
Appellant
factors were
appeal,

has not

present.

He only

any of

the above

argued below, as he

does on

the merits of the Fourth Amendment claim -- that the


______

search was illegal.


district court

However, under

Rakas and Aguirre,


_____
_______

correctly refrained from reaching

of the challenged search


a

alleged that

the

the merits

where appellant failed to establish

privacy interest in his

daughter's apartment.

See Rakas,
___ _____

439 U.S. at 150; Aguirre, 839 F.2d at 859.


_______

started,

6.

Finally,

appellant claims that,

before trial

the

district

court denied

right to

presumed innocent.
the

him

the

be

Appellant alleges that this occurred when

court asked the jury

the following question:

"Has any

juror already reached an opinion as to the guilt or innocence


of

this

defendant?"

answered "no"

by the

According
shaking of

to

appellant, each

heads or by

silence.

juror
He

-8-

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
___
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
conviction

the

foregoing

is affirmed.
________

reasons,

Appellant's

government's brief is denied.


______

the

motion to

judgment

of

strike the

-9-