United States v. DeLeon

Opinion

USCA1 Opinion

November 10, 1993     [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1375

UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   WILLIAM DELEON,

                                Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

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

                                        Before

                        Selya, Cyr and Stahl, Circuit Judges.
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                              _________________________

               Marie T. Roebuck on brief for appellant.
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               Edwin J. Gale,  United States Attorney, Stephanie  S. Browne
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          and Gerard  B. Sullivan,  Assistant United  States Attorneys,  on
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          brief for the United States.

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Per Curiam.  Defendant-appellant William DeLeon appeals
                    Per Curiam.
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          his conviction  on one  count of  using a  firearm during  and in

          relation to the  commission of drug  trafficking offenses.1   See
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          18 U.S.C.   924(c)(1) (1988).   He posits three claims of  error.

          None suffice.

                                          I
                                          I

                    Appellant's  challenge   to  the  sufficiency   of  the

          evidence is unavailing.  Following  a guilty verdict, a reviewing

          court  must   scrutinize  the  record,  drawing   all  reasonable

          inferences in  favor of the  verdict, to ascertain if  a rational

          jury could have found that  the government proved each element of

          the  crime beyond  a  reasonable  doubt.   See  United States  v.
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          Echeverri, 982  F.2d 675, 677  (1st Cir. 1993); United  States v.
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          Ortiz, 966 F.2d  707, 711 (1st  Cir. 1992), cert. denied,  113 S.
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          Ct. 1005 (1993).   The government can satisfy its burden of proof

          by  either direct or circumstantial evidence.  See Echeverri, 982
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          F.2d at  679; United  States v.  Rivera-Santiago, 872  F.2d 1073,
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          1079 (1st Cir.), cert. denied, 492 U.S. 910 (1989).  To sustain a
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          conviction,  a reviewing  court  need not  conclude  that only  a

          guilty verdict could appropriately be reached; it is  enough that

          the  jury's  determination  draws its  essence  from  a plausible

          reading of  the record.   See Echeverri, 982 F.2d  at 677; Ortiz,
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          966 F.2d at 711.  Using these guideposts, the quantum of evidence

          adduced here, though  largely circumstantial, is adequate  to the
                              
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               1Appellant  was   simultaneously  charged   with  two   drug
          trafficking counts.  He pled guilty to those charges and they are
          not before us.

                                          2

task.  

                    In United  States v. Hadfield,  918 F.2d 987  (1st Cir.
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          1990), cert. denied, 111 S.  Ct. 2062 (1991), a section 924(c)(1)
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          case, we  made it  pellucid that where  a drug trafficker  is not

          carrying a gun  on his person,  but has  one nearby, the  court's

          critical  concern  is  not  whether  the  weapon  was  "instantly

          available" or "exclusively dedicated to the narcotics trade," but

          whether  it  was  "available  for use"  in  connection  with  the

          narcotics trade.  Id.  at 998.  See also Smith  v. United States,
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          113 S. Ct. 2050, 2059 (1993)  (explaining that a weapon meets the

          statutory  test if its presence, rather  than being accidental or

          coincidental, facilitates, or has the potential  of facilitating,

          the drug  trafficking offense).   We  think the  case at  hand is

          largely governed by Hadfield.
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                    DeLeon was  apprehended in  an uninhabitable  apartment

          that served   or so the jury supportably could have found    as a

          drug distribution outlet.   Drugs and a handgun  were thrown from

          the window as the  police effected an entry.   Appellant was  the

          sole person discovered  inside the apartment.  He  admitted to an

          INS agent,  Bernstein, that he  knew the pistol  was kept at  the

          premises where drugs were being sold.   We think this evidence is

          more than ample.  Applying the Hadfield standard, a rational jury
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          could certainly  find a  facilitative nexus,  that  is, the  jury

          could  reasonably  conclude  that  the  weapon was  kept  in  the

          apartment to be "available for use" during and in relation to the

          ongoing drug trafficking    and that appellant knew as much.  See
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3

United States  v. Abreu,  952 F.2d 1458,  1466 (1st  Cir.) ("Even
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          though  a weapon is never  fired, if it is kept  nearby by a drug

          dealer,   it  is   'used'  so   as  to   satisfy   the  statutory

          requirement."),  cert. denied,  112 S.  Ct.  1695 (1992);  United
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          States  v.  Castro-Lara,  970  F.2d  976,  983  (1st  Cir.  1992)
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          (collecting cases), cert.  denied, 113  S. Ct.  2935 (1993);  see
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          generally United States v. Ingraham,  832 F.2d 229, 240 (1st Cir.
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          1987) ("The law is not so struthious as to compel a criminal jury

          to ignore  that which is perfectly obvious."),  cert. denied, 486
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          U.S. 1009 (1988).   The jury was  also free to conclude  from the

          collocation  of   circumstances  that   appellant  constructively

          possessed the firearm.  See,  e.g., United States v. Winslow, 962
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          F.2d 845, 852 (9th Cir. 1992);  Hadfield, 918 F.2d at 998; United
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          States v.  Malin, 908 F.2d  163, 168-69 (7th Cir.),  cert. denied
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          498 U.S. 991 (1990).  No more was exigible.2  

                                          II
                                          II

                    Appellant next complains that the prosecution failed to

          fulfill the  requirements imposed by Brady v.  Maryland, 373 U.S.
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          83, 87 (1963),  and by the Jencks  Act, 18 U.S.C.    3500 (1988).

          This  complaint  misconstrues  the  constraints  under  which the

          government must operate in a criminal case.  

                    Appellant brands  three different pieces  of "evidence"

          as improperly withheld.  The  first item is a supposed  Bureau of

          Criminal Identification report.   The record  fails to show  that
                              
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               2Appellant's  furtive actions    he  admitted,  for example,
          having  defenestrated the narcotics inventory as trouble loomed  
          were frosting on the cake, so to speak.

                                          4

any such report  ever existed.  The second  item, never precisely

          described,  concerns "Jose Garcia."   The reference  is puzzling:

          although  the prosecutor  mentioned Garcia  fleetingly in  cross-

          examining appellant, the record does  not contain even a  whisper

          of  a hint  of a  suggestion  that the  government possessed  any

          statement from, report concerning, or other concrete  information

          anent "Jose  Garcia."  The  government is surely not  required to

          disclose  nonexistent  documents  or information  unknown  to it.

          See,  e.g., United States v. Aichele, 941 F.2d 761, 764 (9th Cir.
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          1991); United States v. Glaze, 643 F.2d 549, 552 (8th Cir. 1981).
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The last  piece of  evidence is  a so-called  "N.C.I.C.

          report."   This report was,  in fact, given to  appellant, albeit

          belatedly   but appellant neglected to seek a continuance when he

          received the report and, what is more,  he has failed to show the

          slightest  prejudice arising from the delayed disclosure.3  Thus,

          even assuming, arguendo  , that the N.C.I.C.  report comes within
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          the Brady  realm, the assignment  of error founders.   See, e.g.,
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          United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990); United
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          States v. Ingraldi, 793 F.2d 408, 413 (1st Cir. 1986).
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                                         III 
                                         III

                    Appellant's  final   claim  of  error  relates  to  the

          district  court's admission  of the  handgun into evidence.   The

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               3The  N.C.I.C. report  contained  only  a  single  piece  of
          (negative) information:   it indicated that  the handgun was  not
          listed as  stolen property.   It is hard  to see how  this tidbit
          comprised relevant evidence.  See Fed. R. Evid. 402.
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                                          5

centerpiece of this claim is the asseveration that the government

          did  not satisfactorily  forge the  chain  of custody.   We  have

          examined the  record closely  and are  satisfied that, here,  the

          arguable  gaps in the  chain of custody  go to the  weight of the

          evidence  rather than  to its  admissibility.  See,  e.g., United
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          States v. Ladd,  885 F.2d  954, 956  (1st Cir. 1989).   No  error
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          inhered.

                                          IV
                                          IV

                    We  need  go  no  further.    Our  perscrutation  fully

          persuades  us that  appellant's legal  arguments  lack merit  and

          that, therefore, his conviction must stand.

Affirmed.  See 1st Cir. Loc. R. 27.1.
          Affirmed.  See 1st Cir. Loc. R. 27.1.
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