United States v. Benevides

• Court: Court of Appeals for the First Circuit
• Decided: February 12, 1993
• Docket: 92-1737
• Status: Published

Opinion

USCA1 Opinion

February 11, 1993
                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 92-1737

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 JOSEPH S. BENEVIDES,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                          Bownes, Senior Circuit Judge, and
                                  ____________________
                                Stahl, Circuit Judge.
                                       _____________

                                 ____________________

            Randy  Olen  with  whom  John  M.   Cicilline  was  on  brief  for
            ___________              ____________________
        appellant.

            Margaret E.  Curran, Assistant United  States Attorney, with  whom
            ___________________
        Lawrence D.  Gaynor, Assistant United  States Attorney and  Lincoln C.
        ___________________                                         __________
        Almond, United States Attorney, were on brief for appellee.
        ______

____________________

                                  February 11, 1993
                                 ____________________

STAHL, Circuit Judge.  At his jury trial, defendant
                             _____________

            Joseph S. Benevides was convicted of conspiracy to transfer a

            firearm  illegally.    On  appeal,  defendant  challenges the

            sufficiency   of  the  evidence  supporting  his  conviction.

            Finding  sufficient evidence  to sustain  the  conviction, we

            affirm.

                                          I.
                                          I.
                                          __

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                      We summarize the evidence in a light most favorable

            to the government.  United States v. Nueva, 979 F.2d 880, 881
                                _____________    _____

            (1st  Cir. 1992).  Defendant was employed at Handy and Harmon

            Jewelry  Company  ("Handy  and Harmon")  in  East Providence,

            Rhode Island.  On May 15, 1991, Officer Genaro Ramirez of the

            East Providence Police Department began undercover work as an

            employee  of  Handy  and   Harmon.    Although  his  original

            assignment was  to investigate complaints of  gold theft from

            the  company,  Ramirez  began  investigating  other  possible

            criminal  activity as  well.   As part of  his investigation,

            Ramirez told Yee Yang, another employee  of Handy and Harmon,

            that  he was  interested  in purchasing  a  gun for  his  own

            protection.  Soon thereafter, defendant approached Ramirez at

            work  and told  him that  he had  a friend  who could  supply

            Ramirez with guns.  Defendant mentioned specifically that his

            friend  had a  "beautiful"  sawed-off shotgun  that defendant

            himself had consideredpurchasing.  Ramirezexpressed interest.

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On June 27, 1991, defendant advised Ramirez that he

            had  made arrangements for  Ramirez to meet  his friend after

            work.  Ramirez was reluctant  to meet defendant's friend that

            day  because  he  had  advised neither  his  supervisors  nor

            federal  officers from  the  Bureau of  Alcohol, Tobacco  and

            Firearms  of the  meeting.   Defendant  was very  persistent,

            however, and for  the sake of the investigation, Ramirez felt

            he had no choice but  to go.  Defendant and Ramirez  drove in

            separate cars to a  liquor store parking lot where  defendant

            had arranged to meet his friend, Hans Lunder ("Smitty"). 

                      Smitty, accompanied  by his  wife,  arrived at  the

            parking  lot in a black van.  Defendant introduced Ramirez to

            Smitty and  his wife.   After introductions,  defendant asked

            "Why don't you  guys get to business[?]"  In  the presence of

            defendant, Ramirez told Smitty that he had no money with him,

            but  that  he  was  interested in  purchasing  the  sawed-off

            shotgun.  In the course of the  conversation, defendant asked

            Smitty  if Smitty had the  shotgun with him.   Smitty replied

            that he did.   Smitty  mentioned that he  could also  provide

            Ramirez with a .357 handgun, although he did not have it with

            him.  

                      Ramirez  then asked  to  see the  shotgun.   Smitty

            disappeared  momentarily and returned.   With defendant still

            present, Smitty told Ramirez  to proceed to a white  car that

            was parked about twenty-five feet away in the parking lot, to

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get  into the  passenger  side, and  to  "make it  look  cool

            because of the cops."  

                      Ramirez  proceeded   to  the  car   alone,  leaving

            defendant with Smitty and his wife.  Upon getting in the car,

            Ramirez met William  Dawson.  Dawson showed  Ramirez a sawed-

            off  shotgun, and assured him that it functioned.  Dawson and

            Ramirez agreed on a price of $200 for the gun.   Ramirez told

            Dawson that  he had no money,  but that when he  was ready to

            purchase the gun, he would let Dawson know through defendant.

Ramirez then returned  without the gun  to Smitty's

            van.  With defendant still  present, Ramirez told Smitty that

            he would  let Smitty  know,  through defendant,  when he  had

            enough money to buy the sawed-off shotgun.  

                      Less  than  one  month  later, on  July  22,  1991,

            defendant approached Ramirez  and asked him  if he was  still

            interested  in  buying  the  sawed-off shotgun  or  the  .357

            handgun that Smitty had  mentioned.  When Ramirez replied  in

            the  affirmative,  defendant  said  that he  would  make  the

            necessary  arrangements  for  the  purchases  by  telephoning

            Smitty.  

                      Two days later,  on July  24, defendant  approached

            Ramirez at work and told  him that the deal had been  set for

            the  following day.  The next day, July 25, defendant advised

            Ramirez that  the deal was set  for later that day,  but that

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                                          4

defendant  would have to contact  Smitty to make  sure of the

            time and  place of  the meeting.   That afternoon,  defendant

            approached Ramirez to tell him that he had spoken with Smitty

            and  that Smitty had arranged a meeting for that afternoon at

            the  same liquor  store  parking lot  where  the parties  had

            previously met.    Defendant  stated  that he  would  not  be

            present because he had to buy parts for his truck.  Defendant

            said that Smitty would not be present either, but that Dawson

            would arrive with both the shotgun and the .357 handgun.  

                      Ramirez  arrived alone  at the  parking lot  at the

            appointed  time  and  found  Dawson  standing  outside  of  a

            minivan.   Dawson  told  Ramirez that  he  had the  sawed-off

            shotgun which  Ramirez had previously seen,  and that another

            person,  located  across the  street  from  where Dawson  and

            Ramirez  were standing,  had the  .357 handgun  which Ramirez

            could purchase.  

                      Ramirez began haggling with Dawson about the  price

            of the shotgun.   Dawson said that he could  go no lower than

            $170 because Smitty  was getting $50  of the purchase  price.

            When asked whether defendant was receiving any portion of the

            money, Dawson replied that he was not.  Ramirez purchased the

            gun from Dawson for $170. 

                      After placing the shotgun in  the trunk of his car,

            Ramirez returned  to Dawson's minivan and  inquired about the

            .357  handgun.   Dawson directed  Ramirez across  the street,

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                                          5

where Ramirez met a man named "Bill" who showed  him the .357

            handgun.  Ramirez and Bill negotiated a price of $450 for the

            .357  handgun.   Subsequently, Bill  departed the  scene, and

            though  Ramirez expected  his return, Bill  never reappeared.

            Ramirez left without purchasing the handgun.     

                      The following day at  work, defendant asked Ramirez

            if he had purchased  a gun, and  Ramirez replied that he  had

            purchased  the shotgun.  Five days later, on July 31, Ramirez

            told defendant that he had sold the shotgun for a profit.  On

            August 1, Ramirez told  defendant he was still  interested in

            the .357 handgun.  From a telephone at work, defendant called

            Smitty, and handed  the phone to Ramirez.   Smitty apologized

            to  Ramirez for  the  disappearance  of  Bill, and  asked  if

            Ramirez was satisfied with his purchase of the shotgun.  

                      On August 9,  1991, defendant  again called  Smitty

            from  work, and again handed  the phone to  Ramirez.  Ramirez

            asked about the .357  handgun, and Smitty told him  that Bill

            had gone to Florida,  and that he  could not get the  handgun

            until  a later date.  That day, defendant gave Smitty's phone

            number to Ramirez.

                      On October  17, 1991,  defendant was  arrested. The

            indictment against defendant  charged him with conspiracy  to

            transfer a  firearm in  violation of  26 U.S.C.     5861(e)1,

____________________

            1.  26 U.S.C.   5861(e)  makes it unlawful for any  person to
            "transfer  a firearm in  violation of the  provisions of this
            chapter."

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                                          6

58112,  and  5812(a)3  of  the National  Firearms  Act  ("the

            Act"), all in violation of 18 U.S.C.   371.4

____________________

            2.  26 U.S.C.   5811 provides in relevant part:

                 (a) Rate.   There  shall be levied,  collected, and
                     Rate.
                 paid on firearms transferred  a tax at the rate  of
                 $200 for each firearm transferred . . . .

                 (b) By  whom paid.   The tax imposed  by subsection
                     By  whom paid.
                 (a)  of   this  section   shall  be  paid   by  the
                 transferor.

            3.  26 U.S.C.   5812(a) provides:

                 A firearm  shall not be transferred  unless (1) the
                 transferor  of  the  firearm  has  filed  with  the
                 Secretary  [of the Treasury] a written application,
                 in duplicate, for the transfer and registration  of
                 the firearm  to the  transferee on  the application
                 form prescribed  by  the  Secretary;  (2)  any  tax
                 payable on the transfer is paid as evidenced by the
                 proper  stamp affixed  to the  original application
                 form;  (3)  the  transferee  is  identified in  the
                 application form  in such  manner as  the Secretary
                 may by regulations prescribe, except that, if  such
                 person  is an  individual, the  identification must
                 include  his fingerprints  and his  photograph; (4)
                 the transferor of the  firearm is identified in the
                 application form  in such  manner as the  Secretary
                 may  by regulations prescribe;  (5) the  firearm is
                 identified in  the application form in  such manner
                 as the Secretary may by regulations prescribe;  and
                 (6) the  application form shows that  the Secretary
                 has approved the  transfer and the  registration of
                 the firearm to the transferee.   Applications shall
                 be denied if the  transfer, receipt, or  possession
                 of  the  firearm  would  place  the  transferee  in
                 violation of the law.

            4.  18 U.S.C.   371 provides in relevant part:

                 If two  or more  persons conspire either  to commit
                 any  offense  against  the  United  States,  or  to
                 defraud the United States, or any agency thereof in
                 any manner or for  any purpose, and one or  more of
                 such persons do any act to effect the object of the
                 conspiracy,  each  shall  be fined  not  more  than

                                         -7-
                                          7

At trial, the government's evidence showed that the

            gun  which Ramirez purchased from Dawson was a firearm within

            the  meaning  of  26  U.S.C.      5845(a)(2),5  that  it  was

            unregistered,   and  that  it  was  transferred  without  the

            required application  to transfer and without  payment of the

            required transfer tax.

                                         II.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                      Defendant   challenges   the  sufficiency   of  the

            evidence  supporting  his  conviction.    More  specifically,

            defendant argues  (1) that  there  was insufficient  evidence

            that  he entered  into an  agreement to  commit the  unlawful

____________________

                 $10,000 or imprisoned not  more than five years, or
                 both.

            5.  26 U.S.C.   5845(a)(2) provides:

                 The  term  "firearm" means  a  weapon  made from  a
                 shotgun if  such weapon as modified  has an overall
                 length  of  less  than 26  inches  or  a  barrel or
                 barrels of less than 18 inches in length.

            The weapon which was transferred was a modified  shotgun with
            an  overall length of twenty  one and one-half  inches, and a
            barrel length of twelve and one-half inches.  

                                         -8-
                                          8

act,6  and (2) that he was  indifferent to the outcome of the

            conspiracy. 

                      In reviewing  a claim of  insufficient evidence, we

            view the evidence in the light most favorable to the verdict,

            and determine  whether a  rational trier  of fact  could have

            found  guilt beyond  a  reasonable doubt.   United  States v.
                                                        ______________

            Tejeda, 974 F.2d 210, 212 (1st Cir. 1992).
            ______

                      "The  `essence'  of conspiracy  is an  agreement to
                                                             _________

            commit a crime."   United States v. Moran, No.  91-1772, slip
                               _____________    _____

            op. at 3  (1st Cir.  Jan. 20, 1993)  (emphasis in  original).

            Thus, a  sustainable  conspiracy conviction  requires  "proof

            beyond a  reasonable doubt that the  conspirators intended to

            agree and to commit whatever substantive criminal offense may

            have been  the object of  their unlawful agreement."   United
                                                                   ______

            States v. Cruz, No. 91-1047, slip op. at 7 (1st Cir. Dec. 18,
            ______    ____

            1992).    The unlawful  agreement  may be  either  express or

            tacit.  Tejeda, 974 F.2d at 212.  Its existence may be proven
                    ______

____________________

            6.  In that part  of his  brief which argues  that there  was
            insufficient evidence of an agreement, defendant also asserts
            that the  government's evidence failed  to show that  he "had
            the  necessary intent to commit the substantive offense."  To
            the  extent that  this statement  is an  attempt to  raise an
            issue  other than  the  sufficiency of  the  evidence, it  is
            plainly inadequate to warrant our review.  We have repeatedly
            warned  parties that  "issues  adverted to  in a  perfunctory
            manner,   unaccompanied   by   some   effort   at   developed
            argumentation, are deemed waived."  United States v. Zannino,
                                                _____________    _______
            895  F.2d 1,  17  (1st Cir.),  cert.  denied, 494  U.S.  1082
                                           _____  ______
            (1990).  Accordingly, we decline to engage in  speculation or
            to forge  beyond  the line  of  argument that  defendant  has
            explicitly pursued in his appeal.  

                                         -9-
                                          9

by direct or  circumstantial evidence.   Id.   Moreover,  the
                                                     ___

            government is not  required to prove that the  defendant knew

            about, or took part in, all aspects of the conspiracy.  Cruz,
                                                                    ____

            slip  op. at  8; United States  v. Rivera-Santiago,  872 F.2d
                             _____________     _______________

            1073, 1079 (1st Cir.),  cert. denied, 492 U.S. 910,  493 U.S.
                                    _____ ______

            832 (1989).  All that is required is that the government show

            "`the  essential nature  of  the plan  and the  [defendant's]

            connection  with it.'"    Id. (quoting  Blumenthal v.  United
                                      ___           __________     ______

            States,  332 U.S.  539, 557  (1947)).   The record  before us
            ______

            discloses ample evidence to support defendant's conviction of

            conspiring to transfer a firearm illegally.

                      The  government's  evidence  showed that  defendant

            approached Ramirez  and told  him  about a  friend who  could

            supply guns, that defendant arranged the first meeting in the

            parking lot,  that he persisted  in bringing  Ramirez to  the

            first meeting, that he arrived at the first meeting and asked

            Smitty  whether  Smitty  had  brought the  shotgun,  that  he

            remained in  the parking lot with Smitty throughout the first

            meeting, that he approached Ramirez about the second meeting,

            that  he  arranged  the  second  meeting  when  the  gun  was

            transferred, and that he continued  to phone Smitty after the

            transfer.  In our view, such evidence is more than sufficient

            for a reasonable  jury to have inferred  an agreement between

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                                          10

Smitty  and  defendant  to  transfer  the  gun  to  Ramirez.7

            Accordingly,   we   find  defendant's   sufficiency  argument

            unpersuasive.

____________________

            7.  In  his  motion to  the  district court  for  judgment of
            acquittal,  and  again on  appeal,  defendant  has relied  on
            United States  v. Tyler, 758 F.2d  66, 69 (2d Cir.  1985), to
            _____________     _____
            argue  that he merely helped a willing buyer locate a willing
            seller.   As  the district  court properly  noted in  denying
            defendant's motion, however, Tyler differs significantly from
                                         _____
            the case before us. 
                 In Tyler, the defendant met an undercover police officer
                    _____
            who  expressed an  interest in  purchasing drugs.   Defendant
            Tyler then approached drug dealers in the street on behalf of
            the officer.    Eschewing  the  first dealer  he  met,  Tyler
            arranged for  the officer  to purchase heroin  from a  second
            dealer.  There was no evidence that Tyler knew either seller.
            Finding that "[t]he evidence adduced by the government merely
            shows that  Tyler  helped a  willing buyer  locate a  willing
            seller,"  id.  at 69,  the  Second  Circuit reversed  Tyler's
                      ___
            conspiracy   conviction,   reasoning  that   "such  evidence,
            standing alone, is insufficient to establish the existence of
            ________ _____
            an agreement between [Tyler] and the  seller."  Id. (emphasis
                                                            ___
            supplied).  
                 In  the  instant case,  the government's  evidence shows
            that  defendant  approached  Ramirez   at  work  on   several
            occasions regarding  the  transfer, that  he  placed  several
            phone calls,  arranged two  meetings, and attended  the first
            meeting.   Therefore, unlike  the spontaneous sale  in Tyler,
                                                                   _____
            which provided  no evidence of an agreement between Tyler and
            the seller, the record before us presents ample evidence from
            which  the  jury  could   have  found  an  agreement  between
            defendant and Smitty to transfer the shotgun.
                 Defendant further  argues  that the  district court,  in
            reaching its decision that Tyler did not apply, unduly relied
                                       _____
            on  the  government's  assertion that  defendant  "initiated"
            discussions  about  the  gun.    Our  review of  the  record,
            however, shows  that the district court did  not limit itself
            to evidence regarding the  initiation of the sale.   Instead,
            the district court properly considered all of the evidence of
            an   agreement,  including   defendant's  phone   calls,  his
            arrangement of the meetings  and his later conversations with
            Ramirez about the transfer, when it denied defendant's motion
            for judgment of acquittal based on Tyler.
                                               _____

                                         -11-
                                          11

Defendant's second argument suffers a similar fate.

            A  conspiracy  conviction  will   not  be  sustained  if  the

            government's evidence shows that a defendant "was indifferent

            to the [conspiracy's] outcome  altogether."  United States v.
                                                         _____________

            Aponte-Suarez,  905  F.2d 483,  491  (1st  Cir. 1990),  cert.
            _____________                                           _____

            denied,  111  S.  Ct. 531  (1990),  111  S.  Ct. 975  (1991).
            ______

            Instead,  "[a]n  accused must  `in  some  sense promote  [the

            conspiracy] himself, make  it his  own, have a  stake in  its

            outcome.'"  Id. (quoting  United States v. Falcone, 109  F.2d
                        ___           _____________    _______

            579, 581 (2d Cir.), aff'd, 311 U.S. 205 (1940)).  In the case
                                _____

            at bar, there was  evidence that defendant approached Ramirez

            on  numerous   occasions,  planned  meetings,   persisted  in

            bringing them about,  and asked about  the transfer after  it

            occurred.  Far from showing indifference, this evidence tends

            to  indicate  that defendant  actively promoted  the transfer

            which  underlies  his  conviction.    Accordingly, we  reject

            defendant's contention that a reasonable jury only could have

            found  that   he  was  indifferent  to  the  outcome  of  the

            conspiracy.8 

____________________

            8.  In arguing  that he  was indifferent to  the conspiracy's
            outcome, defendant relies almost exclusively on the fact that
            he  received no money for the transfer.  However, a defendant
            "may  be guilty  of  participation in  a criminal  conspiracy
            without actually profiting from or having any financial stake
            in  it."  United States v. Alemany  Rivera, 781 F.2d 229, 237
                      _____________    _______________
            n.9 (1st Cir. 1985), cert. denied, 475 U.S. 1086 (1986).  See
                                 _____ ______                         ___
            also Aponte-Suarez, 905 F.2d at 491.  Simply put, in the face
            ____ _____________
            of the  aforementioned evidence,  we do not  find defendant's
            lack of a financial stake in the  sale of the shotgun to be a
            sufficient basis for overturning the jury's verdict.

                                         -12-
                                          12

III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      For the foregoing  reasons, defendant's  conviction

            is affirmed.  Affirmed.
                          ________

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