USCA1 Opinion

[NOT FOR PUBLICATION]

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No. 92-1995

UNITED STATES,
Appellee,
v.
PETER A. LEBON,
Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jose Antonio Fuste, 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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Roger A. Cox on brief for appellant.

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A. John Pappalardo, United States Attorney, and Michael J.
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Tuteur, Assistant U.S. Attorney, on brief for appellee.
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Per Curiam.
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knowingly

Defendant

contends

permitted its main

perjury.

We

that the

government

witness, Tina Pina,

conclude defendant has not

to commit

established perjury

and affirm his conviction.

First, defendant claims
testified that
carrying a
was

Tina perjured herself

"being handcuffed

firearm" was "all

perjurious,

according

tantamount to an assertion
before,

when,

charges

in her

in

new to [her]."
to

defendant,

had

Defendant

because

previously
reads too

unlawful

The statement

that she had never

fact, she

life.

and charged with

when she

it

was

been arrested
faced several
much into

the

statement.
arrested.

Tina

did not

assert

Moreover, even if

that she

had never

Tina had been arrested

been
in the

past, being handcuffed and charged with unlawfully carrying a

firearm

in the manner described

as "new" to her.

Defendant has not shown perjury.

Second, defendant
she testified
told her to
defendant

at trial could well qualify

contends Tina

perjured herself

when

that it was defendant who handed her a gun and

stash the gun in

her pants.

Perjury

is shown,

claims, by the fact that Tina, interviewed several

days after arrest by Agent

Offringa that defendant
stash the gun

Offringa, did not then tell Agent

was the one who had

and by alleged statements in

directed her to
two reports that

she did not know who had handed her the gun.
Again,

defendant has not shown perjury.

Agent Offringa

-2-

acknowledged at trial

that his report of his

Tina several days after arrest

the one who had
it.

did not identify defendant as

given her the gun

Agent Offringa

interview with

and had told her to

testified, however, that

hide

in subsequent

interviews

Tina consistently

claimed defendant was

who had directed her and that she had never

had handed

her the gun.1

As for the

said anyone else

alleged statements in

two reports

that Tina had claimed

she did not know

handed

the gun,

were not

her

evidence.

Consequently,

defendant's claim
who

handed her

evidence or

that Tina told

the gun.

See,
___

Cir.)

support for

not consider

now know
on appeal

not been presented

v. Tansy,
_____
and

introduced into

record

to the

fact that a witness

changes her story does

("Contradictions

who had

officers she did

We will

e.g., Tapia
____ _____

testimony alone do not

an

no

In any event, however, the

contradicts herself or

(10th

there is

arguments which have

trial court.

perjury.

the reports

the one

not establish

926 F.2d

changes

in a

constitute perjury and do

1554, 1563
witness's
not create

inference, let alone prove, that the prosecutor knowingly

presented perjured testimony."), cert. denied, 112 S. Ct. 115

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1. Defendant asks this court to expand the record to include
Agent Offringa's report. The request is denied.
Although
the report was utilized by defense counsel in cross-examining
Agent Offringa, the report was not introduced into evidence.
Defendant may not add to the record at the appellate level.
In any event, since Agent Offringa acknowledged at trial that
his report did not identify defendant as the one handing Tina
the gun, the report itself is not needed to establish what
Agent Offringa has admitted.
-3-

(1991).
In

accordance

with

California, 386 U.S.

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trial

and sentencing

wholly frivolous.
is granted.
is affirmed.
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our

obligation

738, 744 (1967),

record.

We

under

Anders
______

we have reviewed

conclude

the appeal

v.
the
is

Consequently, counsel's motion to withdraw

Defendant's motions are denied, and the judgment

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