United States v. Bergodere

Opinion

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 94-1520

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  CARLOS BERGODERE,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                              _________________________

                                        Before

                        Selya, Cyr, and Stahl, Circuit Judges.
                                               ______________

                              _________________________

               David A.F. Lewis for appellant.
               ________________
               Zechariah  Chafee,  Assistant United  States  Attorney, with
               _________________
          whom  Sheldon Whitehouse, United  States Attorney, was  on brief,
                __________________
          for appellee.

                              _________________________

                                  November 30, 1994

                              _________________________



SELYA,  Circuit Judge.  This appeal raises questions of
                    SELYA,  Circuit Judge.
                            _____________

          first impression  in this  circuit concerning  how courts  should

          apply the lessons of Batson v. Kentucky, 476 U.S. 79  (1986), and
                               ______    ________

          its progeny.  After answering  those questions, we conclude  that

          the district  court did not  err in permitting the  government to

          eliminate  the  lone   African-American  juror  by  means   of  a

          peremptory challenge.   Since  appellant's  other assignments  of

          error are equally unavailing, we affirm the judgment below.

          I.  BACKGROUND
          I.  BACKGROUND

                    On March  9, 1993, a  team of law  enforcement officers

          executed a search warrant at the residence of defendant-appellant

          Carlos Bergodere in  Providence, Rhode Island.  When the officers

          arrived, only appellant and his  wife, Cynthia Eastwood, were  on

          the premises.

                      Appellant's apartment consisted of  a kitchen, dining

          area,  living room,  and two  bedrooms.   During the  search, the

          officers discovered three "browns" of  heroin in the kitchen1 and

          an operable  .9 millimeter Luger pistol, fully  loaded, under the

          seat  cushions of the  living room sofa.   Several rounds of live

          ammunition,  not  corresponding  to  the  Luger,  were  found  in

          appellant's bedroom.  The officers arrested  appellant and seized

          additional quantities of heroin from his person.

                    In  due  season,  a  federal  grand  jury  returned  an

          indictment  charging appellant with possession of a firearm after
                              
          ____________________

               1A "brown"  is a common  unit of sale  in the heroin  trade.
          One brown comprises  50 glassine packets, each  containing a dose
          of heroin.  A brown has a street value of approximately $500.

                                          2



a   previous  felony  conviction,  see  18  U.S.C.     922(g)(1),
                                             ___

          possession of heroin  with intent to distribute, see  21 U.S.C.  
                                                           ___

          841(a)(1) & (b)(1)(C), and using a firearm during and in relation

          to  a  drug-trafficking   crime,  see  18  U.S.C.      924(c)(1).
                                            ___

          Appellant  entered a  "not  guilty"  plea.   In  time, the  court

          empaneled a jury.  Contrary  to the more common federal practice,

          the judge permitted the attorneys to conduct the voir dire.

                    In the course of jury selection, the following colloquy

          took  place  between  the prosecutor  and  a  black venireperson,

          Robert Goodrum.

                    Mr.  Chafee:  Mr. Goodrum, where do you work,
                    Mr.  Chafee:
                    sir?

                    Mr. Goodrum:   I work  in Newport.   I'm area
                    Mr. Goodrum:
                    director for an adolescent outreach program.

                    Mr. Chafee:  .  . . [A]re these young  people
                    Mr. Chafee:
                    who are having trouble in the community?

                    Mr.  Goodrum:  Yes, it varies from kids doing
                    Mr.  Goodrum:
                    well, to kids in places like this.

                                  *       *       *

                    Mr. Chafee:   Obviously you have a  big heart
                    Mr. Chafee:
                    for  people in trouble.   You're going  to be
                    asked  to sit in  judgment on somebody.   Can
                    you  be  fair  and   impartial  to  both  the
                    Government and  the defendant  in this  case,
                    listen  to the  evidence and  call  it .  . .
                    according  to the law  given to you  by Judge
                    Lagueux?

                    Mr. Goodrum:  Well, it will be a struggle but
                    Mr. Goodrum:
                    I know I can do it right, yeah.

                    Later  on, defense counsel  engaged in a  colloquy with

          Mr. Goodrum.

                    Mr. Gillan:  . . .  Why do you feel it  would
                    Mr. Gillan:
                    be a struggle for you  to sit in judgment  on

                                          3



this case?

                    Mr.  Goodrum:  I  just have problems  I guess
                    Mr.  Goodrum:
                    with adults and drugs as I deal with kids and
                    drugs.

                                  *       *       *

                    Mr. Gillan:  And what if an adult is addicted
                    Mr. Gillan:
                    to drugs.  How does that make you feel?

                    Mr. Goodrum:   . . . I can deal with that.  I
                    Mr. Goodrum:
                    mean, you know, when I think about people who
                    might be soliciting I have problems.

                    Mr.  Gillan:    People  might  be  soliciting
                    Mr.  Gillan:
                    children?

                    Mr. Goodrum:  Right.
                    Mr. Goodrum:

                    Mr. Gillan:   Okay.   but if  that's not  the
                    Mr. Gillan:
                    evidence  in this case  then . .  . you won't
                    have a problem with that?

                    Mr.  Goodrum:  Then I wouldn't have a problem
                    Mr.  Goodrum:
                    with it.

                     The   prosecution  dismissed   Goodrum  from   further

          service.   Appellant  objected.   The  district court  upheld the

          strike, apparently finding  that appellant failed to make a prima

          facie showing  that  the strike  was  motivated by  a  race-based

          animus.  In the  process, the judge specifically noted  Goodrum's

          avowed doubts as to whether he could be an impartial juror.

                    A  jury devoid  of black  members eventually  convicted

          appellant on all counts.  This appeal followed.

          II.  THE PEREMPTORY CHALLENGE
          II.  THE PEREMPTORY CHALLENGE

                    Appellant's   most  striking   argument  concerns   the

          prosecution's  challenge of  the  juror, Goodrum.    We begin  by

          tackling that matter.

                            A.  The Framework for Inquiry.
                            A.  The Framework for Inquiry.
                                _________________________

                                          4



The  Supreme Court  has recognized  that  in civil  and

          criminal  trials potential jurors, as well  as litigants, have an

          equal protection right to jury selection procedures that are free

          from group stereotypes  rooted in, and reflective  of, historical

          prejudice.  See J.E.B.  v. Alabama, 114 S. Ct. 1419,  1421 (1994)
                      ___ ______     _______

          (finding gender, like race,  to be an unconstitutional  proxy for

          juror competence and impartiality); Powers v. Ohio, 499 U.S. 400,
                                              ______    ____

          402 (1990) (stating  that racial discrimination in  the selection

          of jurors  offends the  dignity of persons  and the  integrity of

          courts).

                    In  evaluating  an  equal  protection  challenge  to  a

          prosecutor's use of  a peremptory strike, a  three-part framework

          should be employed.  See Batson, 476 U.S. at 96-98; United States
                               ___ ______                     _____________

          v. Perez, ___  F.3d ___, ___  (1st Cir. 1994) [No.  93-1320, slip
             _____

          op.  at 3-4].   First,  the  defendant must  make  a prima  facie

          showing  of discrimination in  the prosecutor's launching  of the

          strike.    See  Batson, 476  U.S.  at 96-97.    If  the defendant
                     ___  ______

          fulfills this  requirement by  establishing, say,  a prima  facie

          case  of a  racially driven  impetus,2 then  the prosecutor  must

          proffer  a race-neutral  explanation  for having  challenged  the

          juror.  See id. at 97; see  also United States v. Lewis, ___ F.3d
                  ___ ___        ____ ____ _____________    _____

          ___, ___  (1st Cir.  1994) [No. 93-1819,  slip op.  at 32].   The

          prosecutor's  burden is  merely  a burden  of  production, not  a

          burden of persuasion.   If the prosecutor complies,  then, at the

                              
          ____________________

               2The  three-part framework  is the  same for  gender as  for
          race.  See J.E.B., 114 S. Ct. at 1429.
                 ___ ______

                                          5



third and final stage, the district court must decide whether the

          defendant has  carried the ultimate  burden of  proving that  the

          strike  constituted purposeful  discrimination  on  the basis  of

          race.   See Hernandez  v. New York,  500 U.S. 352,  358-59 (1991)
                  ___ _________     ________

          (discussing Batson); Perez, ___ F.3d at ___ [slip op. at 3-4].
                      ______   _____

                    In making a Batson challenge, the defendant retains the
                                ______

          burden  of proof throughout.  As part  and parcel of this burden,

          he must carry the devoir of persuasion regarding the existence of

          a  prima  facie case  of  race-based discrimination  in  the jury

          selection  process.    See  Batson,  476  U.S.  at  96-97.    The
                                 ___  ______

          combination of factors needed to establish a prima facie case are

          limned in  Chakouian v. Moran, 975 F.2d 931, 933 (1st Cir. 1992).
                     _________    _____

          Initially, the defendant must demonstrate that the  prosecution's

          challenge  was directed  at  a  member  of  a  cognizable  racial

          group.3  See Batson, 476 U.S. at  96; Chakouian, 975 F.2d at 933.
                   ___ ______                   _________

          Next, the defendant  must show that the challenge  was peremptory

          rather  than  for cause,  thus  bringing  into play  the  Supreme

          Court's admonition that "peremptory challenges  constitute a jury

          selection practice that permits `those to discriminate who are of

          a  mind to discriminate.'"  Batson, 476 U.S. at 96 (quoting Avery
                                      ______                          _____

          v. Georgia,  345 U.S. 559,  562 (1953)).  Finally,  the defendant
             _______

          must  show circumstances sufficient,  when combined with  the two

          antecedent  facts,  to  raise an  inference  that  the prosecutor
                              
          ____________________

               3The defendant and the challenged juror need not  be members
          of the same  race.  See  Powers, 499 U.S. at  409-10 (eliminating
                              ___  ______
          Batson's "racial identity" requirement);  Chakouian, 975 F.2d  at
          ______                                    _________
          934.  Thus,  the fact that appellant  is not himself  of African-
          American ancestry does not end our inquiry.

                                          6



struck the  venireperson on account of race.   See id.  While the
                                                         ___ ___

          prima facie  case requirement is  not onerous, neither can  it be

          taken for granted.

                               B.  Standard of Review.
                               B.  Standard of Review.
                                   __________________

                    This  court  has  yet  to  articulate  the  appropriate

          standard  against which  to test  a trial  court's ruling  that a

          defendant has    or  has not    made out  a prima  facie case  in

          connection with a Batson challenge.  We do so today.
                            ______

                    A careful reading of Batson convinces us that, although
                                         ______

          this determination  can be characterized  as a mixed  question of

          law and  fact, it is  fact-sensitive, and,  therefore, should  be

          reviewed  under the familiar clear-error standard.  See generally
                                                              ___ _________

          In re Howard, 996 F.2d 1320,  1328 (1st Cir. 1993) ("The standard
          ____________

          of  review applicable  to mixed  questions  usually depends  upon

          where they fall along a degree-of-deference  continuum:  the more

          fact-dominated the  question,  the more  likely  it is  that  the

          trier's  resolution of  it will  be accepted  unless shown  to be

          clearly erroneous.").  Our holding is consistent with the Supreme

          Court's  expression of confidence  that trial judges, experienced

          in conducting and  supervising voir dire, will likely  be able to

          identify prima facie  cases of discrimination.   See Batson,  476
                                                           ___ ______

          U.S. at 97.  Our holding is also consistent with the decisions of

          the five  other courts of  appeals that thus far  have confronted

          the  same  standard-of-review  problem and  resolved  it  in like

          manner.   See United  States v. Vasquez-Lopez,  22 F.3d  900, 901
                    ___ ______________    _____________

          (9th Cir.), cert. denied, 115 S. Ct. 239 (1994); United States v.
                      _____ ______                         _____________

7



Branch, 989  F.2d 752, 755 (5th  Cir.), cert. denied,  113 S. Ct.
          ______                                  _____ ______

          3060 (1993); United States v. Casper,  956 F.2d 416, 418 (3d Cir.
                       _____________    ______

          1992); United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990);
                 _____________    _____

          United States  v. Grandison, 885  F.2d 143, 146 (4th  Cir. 1989),
          _____________     _________

          cert. denied, 495 U.S. 934 (1990).
          _____ ______

                                    C.  Analysis.
                                    C.  Analysis.
                                        ________

                    We  detect no  clear  error  in  the  district  court's

          rejection  of appellant's proffered  prima facie case.   Although

          the  striking of  the  only juror  of  a particular  race  can be

          sufficient  to ground a permissive inference of discrimination in

          certain  circumstances, see, e.g.,  United States v.  Roan Eagle,
                                  ___  ____   _____________     __________

          867 F.2d 436, 441 (8th Cir.), cert. denied, 490 U.S. 1028 (1989),
                                        _____ ______

          such   a  strike  does   not  raise  a   necessary  inference  of

          discrimination,  see  Vasquez-Lopez,  22 F.3d  at  902.   Phrased
                           ___  _____________

          another way, the  mere fact  that the  prosecutor challenges  the

          only   juror  of  a  particular  race,  without  more,  does  not

          automatically   give  rise   to  an   inescapable  inference   of

          discriminatory  intent.    A  defendant  who  advances  a  Batson
                                                                     ______

          argument ordinarily  should "come  forward with  facts, not  just

          numbers  alone."  Moore, 895 F.2d at 485; accord United States v.
                            _____                   ______ _____________

          Dawn, 897 F.2d 1444, 1448 (8th  Cir.), cert. denied, 498 U.S. 960
          ____                                   _____ ______

          (1990).

                    Here,  the defendant  provided nothing  in  the way  of

          either  direct  or  circumstantial proof  to  buttress  the naked

          statistic on  which he  relies.   This  failure is  all the  more

          glaring because the circumstances attendant to the Goodrum strike

8



point  away  from an  inference  of  discrimination.   This  case

          involves a single strike, not multiple strikes.  The government's

          other peremptories  were exercised in an  unexceptionable manner.

          Appellant essayed no  proffer showing that either  the particular

          prosecutor  or the  prosecutor's office  regularly  engaged in  a

          pattern  of suspicious strikes.   The prosecutor's  questions and

          statements during voir dire do not suggest racial discrimination,

          but,  instead, seem  to reflect  a concern  with the  prospective

          juror's ability to reach  a fair and impartial verdict.   This is

          of  considerable  importance,  as the  Court  has  directed trial

          judges  in  such  circumstances  to   examine  "the  prosecutor's

          questions  and  statements   during  voir  dire"  for   signs  of

          purposeful discrimination.  Batson, 476 U.S. at 97.
                                      ______

                    The capstone, of  course, is that the  colloquy between

          the prospective juror and the two  lawyers reflects a legitimate,

          nondiscriminatory reason  why conscientious counsel  might desire

          to exclude  the juror from  further service.  After  all, Goodrum

          admitted that  it would "be a struggle"  to achieve impartiality,

          and  that he  had a  "problem" with  cases involving  "adults and

          drugs."    The  prosecutor,  understandably  concerned  that  the

          talesman  "ha[d] a  big heart  for people  in trouble,"   had  no

          obligation either to  ignore these comments or to  accept at face

          value Goodrum's prediction  that, in the end, he  could put aside

          his "problem" and "do it right."

                    Voir  dire  represents  not  only the  introduction  of

          potential jurors to the factual and  legal issues to be aired  at

9



trial,  see  Powers, 499  U.S.  at  412,  but also  the  lawyers'
                  ___  ______

          introduction to  the venire.   Its core  purpose is to  provide a

          firm foundation for  ferreting out bias.  A  healthy byproduct is

          that  a  careful  voir  dire  eliminates  any  need  to  rely  on

          stereotypes.  See  J.E.B., 114 S. Ct.  at 1429; United States  v.
                        ___  ______                       _____________

          Whitt, 718 F.2d 1494,  1497 (10th Cir.  1983).  Withal, the  line
          _____

          between  discriminatory  and  nondiscriminatory  strikes  is  not

          always easily drawn.  As  courts labor to plot it, trial  lawyers

          are entitled, at a bare minimum, to  a bit of breathing room.  In

          the end, jury selection is not  an exact science.  Its watchwords

          are judgment, flexibility,  and discretion.   Although  attorneys

          cannot  be permitted to  exercise peremptory challenges  based on

          race or gender, they are not prohibited  altogether from striking

          venirepersons of a particular race or gender.

                    We  will  not  paint the  lily.    Evaluative judgments

          concerning juror suitability are often made partially in response

          to  nuance,  demeanor,  body  language, and  a  host  of  kindred

          considerations.  Thus,  the trial judge, who sees  and hears both

          the prospective juror and the opposing attorneys in action, is in

          the   best  position  to  pass  judgment  on  counsel's  motives.

          Recognizing that  we ought  to cede  considerable deference to  a

          district  judge who  observes the  voir dire  at first  hand, see
                                                                        ___

          Batson, 476 U.S. at 97, we refuse to second-guess Judge Lagueux's
          ______

          implicit  finding that the  prosecutor struck Goodrum  because of

          doubts  about  Goodrum's "big  heart"  and  impending "struggle,"

          rather than for some evil purpose.  It follows that the court did

10



not err  in finding  that appellant failed  to establish  a prima

          facie  case of race-based discrimination in the prosecution's use

          of its peremptory challenges.4

          III.  OTHER ASSIGNMENTS OF ERROR
          III.  OTHER ASSIGNMENTS OF ERROR

                    Appellant  advances  three  additional  assignments  of

          error.  We consider two of them,  both of which relate to matters

          of evidentiary  sufficiency.5   Appellant's  final assignment  of

          error  raises  the  boggart of  ineffective  assistance  of trial

          counsel.  This claim  was not asserted in the  district court and

          is not properly before us on direct appeal.  See United States v.
                                                       ___ _____________

          Mala,  7 F.3d  1058, 1063  (1st Cir.  1993) (holding  that absent
          ____

          extraordinary  circumstances,   fact-specific  claims   asserting

          ineffective  assistance of counsel  are not cognizable  on direct

          appeal; collecting  cases to like  effect), cert. denied,  114 S.
                                                      _____ ______

          Ct. 1839 (1994).

                               A.  Standard of Review.
                               A.  Standard of Review.
                                   __________________

                    The   path  that   this  court   traverses  to   review
                              
          ____________________

               4Because appellant  failed to make the requisite first-stage
          showing, the burden never shifted to the prosecutor to articulate
          a race-neutral  explanation for  the strike.   Even so,  it might
          have  been wise  for the  judge to have  asked the  prosecutor to
          proffer an  explicit statement  of the basis  for the  strike, if
          only to confirm the judge's intuition and flesh out the record on
          appeal.  See  United States v. Johnson,  873 F.2d 1137, 1140  n.3
                   ___  _____________    _______
          (8th Cir. 1989), cert. denied, 498 U.S. 924 (1990).
                           _____ ______

               5The  jury  convicted  appellant on  three  counts,  namely,
          possession of a firearm after a previous felony conviction (count
          1), possession of heroin with intent to distribute (count 2), and
          using a  firearm in relation  to a drug-trafficking  crime (count
          3).    In  the district  court,  appellant  unsuccessfully sought
          judgment of acquittal  on all three counts.   On appeal, however,
          he challenges the  sufficiency of the evidence only  in regard to
          counts 2 and 3.

                                          11



sufficiency challenges is well worn.   We inspect the evidence in

          the light most friendly to the verdict, indulging  all reasonable

          inferences in the  verdict's favor and resolving  all credibility

          disputes in the same way.   We then determine whether a  rational

          jury  could find  guilt beyond  a reasonable  doubt.   See, e.g.,
                                                                 ___  ____

          United States  v. Echeverri, 982  F.2d 675, 677 (1st  Cir. 1993);
          _____________     _________

          United States  v. Maraj,  947 F.2d 520,  522-23 (1st  Cir. 1991);
          _____________     _____

          United  States v.  Boylan, 898  F.2d 230,  243 (1st  Cir.), cert.
          ______________     ______                                   _____

          denied,  498 U.S. 849 (1990).   The conviction  stands so long as
          ______

          the guilty  verdict comports with  "a plausible rendition  of the

          record."   United States v.  Ortiz, 966 F.2d  707, 711  (1st Cir.
                     _____________     _____

          1992), cert. denied, 113 S. Ct. 1005 (1993).
                 _____ ______

                                     C.  Count 2.
                                     C.  Count 2.
                                         _______

                    To  sustain a conviction  under 21 U.S.C.    841(a)(1),

          the prosecution must establish beyond a reasonable doubt that the

          defendant  knowingly  or  intentionally  possessed  a  controlled

          substance with intent to distribute it.  See, e.g., United States
                                                   ___  ____  _____________

          v. De Jesus-Rios, 990 F.2d 672, 680 (1st Cir. 1993).  The element
             _____________

          of  possession can  be satisfied  by  evidence that  demonstrates

          either  actual or constructive possession.   See United States v.
                                                       ___ _____________

          Gomez-Vallamizar, 981 F.2d 621, 624 (1st Cir. 1992).
          ________________

                    Appellant  does not  seriously contest  the  element of

          possession, but, instead, concentrates his fire on the element of

          specific  intent.    He alleges  that  the  evidence, taken  most

          congenially  to the  government's  case,  merely  shows  that  he

          possessed heroin  (say, for  personal consumption),  not that  he

12



intended to distribute it.   We read the record differently.   An

          intent to  distribute  drugs  does  not demand  proof  by  direct

          evidence but can be made manifest through circumstantial evidence

          alone.    See  Echeverri,  982  F.2d at  678;  United  States  v.
                    ___  _________                       ______________

          Desmarais,  938  F.2d  347,  352   (1st  Cir.  1991).    In  this
          _________

          connection,  we  have long  recognized that  factors such  as the

          quantity and purity  of the drugs confiscated by  the authorities

          can support  an inference  of intent to  distribute.   See, e.g.,
                                                                 ___  ____

          Echeverri, 982  F.2d at 678; United States  v. Ocampo-Guarin, 968
          _________                    _____________     _____________

          F.2d  1406,  1410 (1st  Cir.  1992);  United States  v.  Batista-
                                                _____________      ________

          Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991).
          _______

                    In this case,  the evidence easily sustained  a finding

          of intent to  distribute.  The officers seized  three browns from

          appellant's kitchen  and eleven glassines from his pocket.  Thus,

          both the quantity of heroin and the method of packaging militated

          toward a  conclusion that  appellant was himself  a dealer.   The

          total value of the  heroin seized    over $1,500   suggested  the

          same conclusion.  Furthermore, an experienced detective testified

          that, in his  expert opinion, the quantity,  packaging, and value

          of the heroin indicated that it was intended for distribution.

                    To  be  sure, this  evidence  was  not  ironclad.    As

          appellant  notes, it  did not  rule out  the possibility  that he
                                                       ___________

          possessed  the heroin  for  personal consumption.    But the  law

          requires only that  the evidence,  fairly viewed,  be capable  of

          supporting   the  jury's  verdict,  not  that  it  exclude  every

          hypothesis consistent with a claim  of innocence.  See Echeverri,
                                                             ___ _________

13



982 F.2d  at 678; Boylan, 898 F.2d at  243.  Accordingly, we find
                            ______

          no infirmity in  appellant's conviction for possession  of heroin

          with intent to distribute.

                                     D.  Count 3.
                                     D.  Count 3.
                                         _______

                    The final portion of appellant's sufficiency  challenge

          concerns the charged  violation of 18 U.S.C.    924(c)(1).  It is

          well  settled that,  under this  statute,  the emphasis  is on  a

          firearm's  availability for use, regardless of whether the weapon

          is actually  used in the commission of  a drug-trafficking crime.

          See United  States v. Paulino,  13 F.3d  20, 26 (1st  Cir. 1994);
          ___ ______________    _______

          United  States v.  Hadfield, 918  F.2d 987,  998 (1st  Cir. 1990)
          ______________     ________

          (collecting  cases),  cert. denied,  500  U.S. 936  (1991).   The
                                _____ ______

          instant  case falls squarely within the boundaries established in

          Hadfield, a case  in which we stated that,  under section 924(c),
          ________

          the principal inquiry should focus  on the presence or absence of

          a  "facilitative nexus"  between  the  charged  offense  and  the

          discovered firearm.  See Hadfield, 918 F.2d at 998.  In  applying
                               ___ ________

          Hadfield, an inquiring court's primary concern is not whether the
          ________

          gun  was "instantly available"  or "exclusively dedicated  to the

          narcotics trade," but whether it  was "available for use" in that

          regard.  Id.; accord United  States v. Castro-Lara, 970 F.2d 976,
                   ___  ______ ______________    ___________

          983 (1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993).  Under
                               _____ ______

          this test,  if an operable firearm is found in close proximity to

          a  room  or  rooms in  which  drug  distribution, processing,  or

          storage  occurs,  then  the  factfinder  ordinarily  is  free  to

          conclude that a defendant having evident ties to the premises and

14



the drugs knew about the gun and intended it to be  available for

          use in relation  to the narcotics enterprise.   See Hadfield, 918
                                                          ___ ________

          F.2d at 998.

                    The  authorities arrested  appellant in  his apartment.

          From the quantity of heroin found on  the premises the jury could

          reasonably conclude that the dwelling served  as a storehouse for

          at least some  of appellant's heroin or, perhaps,  a retail sales

          outlet.  See, e.g, Echeverri,  982 F.2d at 678.   As a lessee  of
                   ___  ___  _________

          the  apartment and  a  person  residing  there, appellant  had  a

          significant degree of control over  the contents of the premises.

          See id.   Within wide limits, he had the ability to determine who
          ___ ___

          and what  could enter his place  of abode.   Officers located the

          weapon  under  the seat  cushions  of  the  living room  couch   

          proximate to the drugs and easily accessible to an individual who

          knew its whereabouts.   Of pivotal importance, the  gun was fully

          loaded.   The police  found additional ammunition  in appellant's

          bedroom which, although,  of a different caliber,  indicated that

          appellant was no stranger to firearms.  On this basis, a rational

          juror  surely could  conclude that  appellant kept  a loaded  gun

          handy  to protect  his heroin  supply.  As  we have  said before,

          "[t]he law is not  so struthious as to compel a  criminal jury to

          ignore  that  which  is  perfectly obvious."    United  States v.
                                                          ______________

          Ingraham, 832  F.2d 229, 240  (1st Cir. 1987), cert.  denied, 486
          ________                                       _____  ______

          U.S. 1009 (1988).  

                    We recognize that  the government's case was  not open-

          and-shut.   For  example,  the proof  at  trial established  that

15



appellant's landlord,  Felipe Moronto, actually owned the pistol,

          and appellant makes  much of this fact.  We agree that this datum

          is relevant    but it is  hardly determinative.  What  matters is

          that the totality of the evidence suffices to permit   and in our

          estimation to support quite amply   a finding that a facilitative

          nexus   existed  between   the   weapon  and   appellant's  drug-

          distribution  activities.   See, e.g.,  United  States v.  Reyes-
                                      ___  ____   ______________     ______

          Mercado,  22 F.3d 363,  367 (1st Cir. 1994);  Paulino, 13 F.3d at
          _______                                       _______

          26;  Castro-Lara, 970  F.2d  at  983.   Therefore,  the claim  of
               ___________

          evidentiary insufficiency fails.

          IV.  CONCLUSION
          IV.  CONCLUSION

                    We  need  go no  further.    For  aught  that  appears,

          appellant was fairly tried and justly convicted before a lawfully

          constituted jury.   For the reasons stated herein,  we affirm the

          judgment   of   conviction,   without   prejudice,  however,   to

          appellant's right to pursue his ineffective assistance of counsel

          claim at a proper time and in a proper venue.

It is so ordered.
                    It is so ordered.
                    ________________

16