UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 94-1370
UNITED STATES,
Appellee,
v.
FRANK NIEVES-BURGOS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin, Circuit Judge,
and Boyle,* Senior District Judge.
Juan R. Acevedo-Cruz, by Appointment of the Court, for
appellant. John F. DePue, Attorney, Department of Justice, with whom
Guillermo Gil, United States Attorney, Warren V zquez, Assistant
United States Attorney, and Nina Goodman, Attorney, Department of
Justice, were on brief for appellee.
August 14, 1995
* Of the District of Rhode Island, sitting by designation.
BOYLE, Senior District Judge. This case presents two BOYLE, Senior District Judge.
issues concerning the conviction of the appellant, Frank Nieves-
Burgos, for use of a firearm during a drug-trafficking offense in
violation of 18 U.S.C. 924(c)(1). Nieves-Burgos asserts,
first, that the jury's general verdict of guilty on the firearm
charge is ambiguous and must be set aside, as it was returned on
a single charge containing three alleged violations, two of which
were not supported by the evidence at trial. Second, Nieves-
Burgos asserts that the only alleged violation supported by
evidence at trial was itself not supported by sufficient
evidence. We conclude that the jury verdict is not ambiguous and
is adequately supported by the evidence, and we affirm.
I. BACKGROUND I. BACKGROUND
The factual background of this appeal is set forth in
United States v. Torres-Maldonado, 14 F.3d 95, 98-100 (1st Cir.),
cert. denied, 115 S. Ct. 193 (1994), an appeal taken by Nieves-
Burgos' co-defendants. We therefore recount the relevant facts,
which for the most part are not disputed, only briefly, and, as
is appropriate, we do so in the light most favorable to the
verdict. See United States v. Torres-Maldonado, 14 F.3d 95, 98
(1st Cir.), cert. denied, 115 S. Ct. 193 (1994).
In February 1991, Nieves-Burgos and several others
rented rooms 310, 311, and 327 of the Carib Inn Hotel in Isla
Verde, Puerto Rico. Nieves-Burgos rented room 311 using a false
name. The group occupied the rooms for several weeks. On March
6, 1991, hotel security personnel notified police of suspicious
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conduct in the three rooms. There had been frequent traffic to,
from, and between the rooms; the three rooms received 90% of the
hotel's incoming telephone calls; the rooms often were paid for
together, in cash; and, a hotel floor supervisor observed two
handguns on a bureau in room 327.
Agents of the United States Bureau of Alcohol, Tobacco,
and Firearms (ATF) began surveillance of the hotel on March 6.
At approximately 11:00 p.m. that evening, they observed Nieves-
Burgos, H ctor Santiago-Alicea, Teddy Le n-Ayala, Oscar D az-
Cruz, and an unidentified man in the hotel lobby. The agents
observed Santiago-Alicea wearing a bullet-proof jacket, which was
bulging from something concealed underneath. The group proceeded
outside the hotel to a parking lot, where the unidentified man
produced a bag and handed it to Santiago-Alicea.
Later that same evening, another unidentified man
arrived at the hotel, and was met by Nieves-Burgos and Pedro Luis
Ram rez-Rivera (Ram rez-Rivera). After a brief conversation,
Nieves-Burgos and Ram rez-Rivera left the unidentified man. They
returned a short while later with Santiago-Alicea, who exchanged
packages with the unidentified man.
On March 7, 1991, ATF agents executed a search warrant
at the three hotel rooms. In room 311, they found five persons:
Nieves-Burgos, Marilyn Gotay-Col n, Catalino Torres-Maldonado,
Ram rez-Rivera, and Santiago-Alicea. Nieves-Burgos was on one of
the room's two beds, clad in his underwear. A search of the room
revealed quantities of cocaine, several bundles of cash, various
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instruments and supplies typically used for packaging cocaine, a
bullet-proof jacket, and a loaded Beretta semi-automatic handgun.
The gun was found with a bundle of cash in a zippered bag on a
sofa on which Gotay-Col n was seated. The bag was located less
than two feet from Nieves-Burgos.
Rooms 310 and 327 were also searched, as were two cars
that were in the hotel's parking lot. More cocaine and
paraphernalia were found in the two rooms. Guns were found in
the two cars. In a green Ford LTD, agents found a loaded .357
revolver; also found were a picture of Nieves-Burgos and a
parking ticket on which was Nieves-Burgos' fingerprint. In a
grey Buick, a nine-millimeter pistol was found. The Buick's
registration certificate was found in Santiago-Alicea's wallet.
Nieves-Burgos and others were indicted. In counts one
and two of the indictment, Nieves-Burgos and others were charged
with possessing with the intent to distribute, and conspiring to
possess with the intent to distribute, cocaine. Count four1
1 Count four provides in full:
On or about March 7, 1991, in the District of Puerto Rico and within the jurisdiction of this Court, FRANKIE FRANKIE NIEVES-BURGOS, also known as KENNY NIEVES-BURGOS, also known as KENNY RAMIREZ, also known as JOSE HERRERA- RAMIREZ, also known as JOSE HERRERA- RIVERA, PEDRO LUIS RAMIREZ-RIVERA, also RIVERA, PEDRO LUIS RAMIREZ-RIVERA, also known as PEDRO MEDINA-RIVERA, CATALINO known as PEDRO MEDINA-RIVERA, CATALINO TORRES-MALDONADO, MARILYN GOTAY-COLON, TORRES-MALDONADO, MARILYN GOTAY-COLON, HECTOR SANTIAGO-ALICEA, TEDDY LEON-AYALA, HECTOR SANTIAGO-ALICEA, TEDDY LEON-AYALA, and OSCAR DIAZ-CRUZ, also known as OSCAR and OSCAR DIAZ-CRUZ, also known as OSCAR SANTIAGO, the defendants herein, aiding SANTIAGO and abetting each other, did knowingly and unlawfully use three (3) firearms of the following descriptions:
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charged Nieves-Burgos and five others with the knowing unlawful
use of three firearms during and in relation to a drug
trafficking crime in violation of 18 U.S.C. 924(c)(1).2 The
(a) Beretta semi-automatic pistol caliber 9mm., Model 92-F, black in color, serial number BER042822Z loaded with ammunition of its own [sic]; (b) Smith and Wesson Revolver, caliber .357 magnum; Model 27-2, three and one half (3 1/2) inch barrel, nickel plated in color with brown grip, serial number N109155; loaded with ammunition of its own caliber; (c) Norinco semi-automatic pistol, caliber 9mm., Model L213, black in color, serial number 315202, loaded with ammunition of its own caliber; during and in relation to the commission of an offense punishable under the Drug Abuse Prevention and Control Act, that is, a violation of Title 21, United States Code, Section 841(a)(1), involving the Schedule II Narcotic Drug Controlled Substance cocaine, as defined in Title 18, United States Code, Section 924(c)(1), which may be prosecuted in a Court of the United States, to wit: aiding and abetting each other in the possession with intent to distribute of approximately nine hundred fifty-six point one (956.1) grams (gross weight) of cocaine, a Schedule II Narcotic Drug Controlled Substance; all in violation of Title 18, United States Code, Section 924(c)(1).
2 18 U.S.C. 924(c)(1) provides in part:
Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of
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firearms alleged in count four to have been used in violation of
924(c)(1) are the three handguns found in room 311 of the hotel
and the two cars searched in the hotel parking lot.
Evidence of the three firearms was presented at trial.
At the close of the evidence, the trial judge instructed the jury
without objection and presented them with a copy of the
indictment for their deliberation. As to Nieves-Burgos, the jury
returned general verdicts of guilty on counts one, two, and four.
Nieves-Burgos took no appeal from the guilty verdict or
his sentence. Upon his imprisonment, he filed a motion to vacate
his sentence under 28 U.S.C. 2255, claiming ineffective
assistance of counsel. His motion was granted, and he was
afforded new counsel for resentencing. On count four, he was
sentenced to sixty months' imprisonment, to run consecutive to
his sentences on the other two counts.
Nieves-Burgos now appeals the guilty verdict on count
four. He asserts that the evidence was not sufficient to support
his conviction as to any of the three firearms. The United
States argues in response that the evidence of the firearm found
in room 311 was sufficient to support the conviction. The
government expressly declines to argue that evidence concerning
either of the two firearms found in the automobiles was
sufficient to support the conviction.3 During argument, the violence or drug trafficking crime, be sentenced to imprisonment for five years . . . .
3 In its brief, the government states: "The government does not argue that Nieves-Burgos' conviction under Section 924(c)(1) is supported by [evidence of] the two guns found during the searches of the cars." Government's Brief at 7 n.5.
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parties were asked to submit supplemental briefs concerning the
issue whether the general verdict of guilty should stand where it
was returned on a count containing three alleged violations of
the firearms statute, two of which concededly were unsupported by
evidence at trial. The parties' arguments were received and
considered. We address the issues.
II. ANALYSIS II. ANALYSIS
A. The General Verdict A. The General Verdict
Nieves-Burgos initially argues that his conviction for
violation of 18 U.S.C. 924(c)(1) cannot stand as the jury's
general verdict of guilty was ambiguous in that it was returned
on a charge that alleged the use of three firearms in violation
of 18 U.S.C. 924(c)(1), and the evidence at trial was not
sufficient to support a conviction as to two of the firearms.
The government concedes that the evidence at trial did not
support a conviction as to two of the three firearms listed in
count four, but argues that the verdict should stand as it is
supported by sufficient evidence as to the remaining firearm.
This issue was effectively determined in Griffin v.
United States, 502 U.S. 46 (1991). In Griffin, the appellant had
been convicted by jury of an unlawful conspiracy in violation of
18 U.S.C. 371. See Griffin v. United States, 502 U.S. 46, 47
(1991). A single count in the indictment charged that the
conspiracy had two unlawful objects: impeding efforts of the
Internal Revenue Service to ascertain income taxes; and impeding
efforts of the Drug Enforcement Administration to ascertain
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forfeitable income. See id. The evidence presented at trial
failed to establish the appellant's guilt with respect to the
second object. See id. at 47-48. The trial court's instructions
to the jury permitted them to return a guilty verdict if they
found the appellant to have participated in either of the two
objects of the conspiracy. See id. at 48. The jury returned a
general verdict of guilty. See id. The Court affirmed the
verdict, citing the rule that when a jury returns a general
verdict of guilty on a single count charging more than one
criminal act, the verdict stands if the evidence sufficiently
supports any of the acts charged. See id. at 56-57 (citing
Turner v. United States, 396 U.S. 398, 420 (1970)).
Griffin provides what was a much-needed clarification
of the law. Prior to Griffin, Supreme Court authority appeared
somewhat disjointed, if not downright contradictory. Compare
Turner v. United States, 396 U.S. at 420 ("The general rule is
that when a jury returns a guilty verdict on an indictment
charging several acts in the conjunctive . . . the verdict stands
if the evidence is sufficient with respect to any one of the acts
charged.") with Yates v. United States, 354 U.S. 298, 312
(1957)("[W]e think the proper rule to be applied is that which
requires a verdict to be set aside in cases where the verdict is
supportable on one ground, but not on another, and it is
impossible to tell which ground the jury selected."). In
Griffin, the Court articulated subtle distinctions between the
lines of relevant cases, seeking to reconcile them. See Griffin
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v. United States, 502 U.S. at 52-56. It is appropriate briefly
to discuss the Supreme Court's analysis in Griffin before we
address the issue as it relates to this case.
In Griffin, the Court discussed the long-recognized
general rule: "a general jury verdict [is] valid so long as it
[is] legally supportable on one of the submitted grounds -- even
though [this gives] no assurance that a valid ground, rather than
an invalid one, was actually the basis for the jury's action."
Id. at 49. The Court acknowledged that this doctrine has been
settled law throughout this country's existence. See id.
Indeed, the rule was declared by Lord Mansfield at King's Bench
before the Declaration of Independence: "if there is any one
count to support the verdict, it shall stand good,
notwithstanding all the rest are bad." Peake v. Oldham, 1 Cowper
275, 276, 98 Eng.Rep. 1083, 1084 (K.B. 1775), quoted in Claasen
v. United States, 142 U.S. 140, 146 (1891), quoted in Griffin v.
United States, 502 U.S. at 49-50. The rule, Griffin notes, was
more recently followed in Turner v. United States, 396 U.S. 398,
420 (1970). In Turner, the appellant had been charged in a
single count with knowingly not only purchasing, but also
dispensing and distributing heroin in violation of Federal law,
and the jury returned a general verdict of guilty on the charge.
Turner v. United States, 396 U.S. at 419-20. The Court concluded
that, because the evidence at trial was sufficient to support the
contention that the appellant had distributed heroin in violation
of the relevant statute, the verdict should be upheld, whether or
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not the evidence was sufficient to support the other conjunctive
allegations in the count. See id. at 420-21. The Court relied
on what it labeled the "general rule" on the issue: "when a jury
returns a guilty verdict on an indictment charging several acts
in the conjunctive . . . the verdict stands if the evidence is
sufficient with respect to any one of the acts charged." Id. at
420, quoted in Griffin v. United States, 502 U.S. at 56-57. See
also Turner v. United States, 396 U.S. at 420 & n.42, and cases
cited.
The primary exception to the general rule, Griffin
recognizes, finds its roots in Stromberg v. California, 283 U.S.
359 (1931). See Griffin v. United States, 502 U.S. at 52. In
Stromberg, the appellant had been charged in a single count of an
information of violating a California statute prohibiting the
display of a red flag for any of three purposes: "as a sign,
symbol or emblem of opposition to organized government[;] or as
an invitation or stimulus to anarchistic action[;] or as an aid
to propaganda that is of a seditious character." Stromberg v.
California, 283 U.S. 359, 361 (1931) (citation omitted). The
Court determined that the first of the statute's three clauses
violates the Fourteenth Amendment. See id. at 369-70. In
setting aside the jury's general verdict, it stated: "[I]f any
of the clauses in question is invalid under the Federal
Constitution, the conviction cannot be upheld." Id. at 368,
quoted in Griffin v. United States, 502 U.S. at 53. The rule of
Stromberg thereafter was applied in many cases involving
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"general-verdict convictions that may have rested on an
unconstitutional ground." See Griffin v. United States, 502 U.S.
at 55, and cases cited.
In Yates v. United States, 354 U.S. 298 (1957), the
Court extended the rule of Stromberg, and in doing so, created
some confusion. Yates concerns the convictions of numerous
appellants on a single-count indictment charging them with
violating a California statute by conspiring for two unlawful
purposes: (1) advocating the violent overthrow of the
government; and (2) organizing the Communist Party of the United
States. See Yates v. United States, 354 U.S. at 300. The Court
determined that the "organizing" charge was prohibited by the
relevant statute of limitations. See id. at 312. The Court
held: "In these circumstances we think the proper rule to be
applied is that which requires a verdict to be set aside in cases
where the verdict is supportable on one ground, but not on
another, and it is impossible to tell which ground the jury
selected." Id. (citing Stromberg v. California, 283 U.S. at 367-
68; Williams v. North Carolina, 317 U.S. 287, 292 (1942); Cramer
v. United States, 325 U.S. 1, 36 n.45 (1945)).
As the Court acknowledged in Griffin, Yates constitutes
a novel and unexplained extension of the Stromberg rule:
Yates . . . was the first and only case
of ours to apply Stromberg to a general
verdict in which one of the possible
bases of conviction did not violate any
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provision of the Constitution but was
simply legally inadequate (because of a
statutory time bar). As we have
described, that was an unexplained
extension, explicitly invoking neither
the Due Process Clause (which is an
unlikely basis) nor our supervisory
powers over the procedures employed in a
federal prosecution.
Griffin v. United States, 502 U.S. at 55-56. Griffin notes that
none of the three cases cited in Yates to support its holding --
Stromberg and two of its progeny, Williams v. North Carolina, 317
U.S. 287, 292 (1942), and Cramer v. United States, 325 U.S. 1, 36
n.45 (1945) -- in fact supports it. See Griffin v. United
States, 502 U.S. at 52, 54-55.
Griffin clarifies Yates by explaining that it extends
only to cases in which one of the possible bases of conviction
was legally erroneous. See id. at 51-52. Griffin distinguishes
cases, like Turner, which concern convictions that may have
rested on a basis that was not supported by the evidence, from
those concerning convictions possibly resting on an invalid
ground as a result of an error of law. See id. at 58-59. It
explains:
In one sense "legal error" includes
inadequacy of evidence -- namely, when
the phrase is used as a term of art to
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designate those mistakes that it is the
business of judges (in jury cases) and of
appellate courts to identify and correct.
In this sense "legal error" occurs when a
jury, properly instructed as to the law,
convicts on the basis of evidence that no
reasonable person could regard as
sufficient. But in another sense -- a
more natural and less artful sense -- the
term "legal error" means a mistake about
the law, as opposed to a mistake
concerning the weight or the factual
import of the evidence. . . . [W]e are
using "legal error" in the latter sense.
Id. at 59 (emphasis added).
Here, Nieves-Burgos asserts, and the government
concedes, that there was insufficient evidence presented at trial
to support the firearms conviction with respect to two of the
three guns listed in the charge, that is, the two guns found in
the cars. Turner and Griffin tell us quite clearly that Nieves-
Burgos' verdict shall not be set aside on this basis alone.
Rather, the verdict must stand so long as it is sufficiently
supported by the evidence concerning the third firearm. We
therefore must determine whether the evidence sufficiently
supports Nieves-Burgos' conviction under 18 U.S.C. 924(c)(1) as
to the firearm found in room 311.
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Before we move on, however, we acknowledge that, before
Griffin, Yates appeared to set forth a rule that differed, if not
conflicted, with the long-standing general rule recognized in
Turner. Prior to Griffin, we cited authority relying on Yates in
support of the proposition that a general verdict returned on a
charge asserting numerous grounds for conviction must be vacated
where one or more of the grounds is insufficiently supported by
the evidence and it is unclear whether the jury relied on the
insufficient ground. See United States v. Moynagh, 566 F.2d 799,
804 (1st Cir. 1977), cert. denied, 435 U.S. 917 (1978) (citing
United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975), cert.
denied, 425 U.S. 934 (1976) (citing Yates v. United States, 354
U.S. 298)) ("We conclude that Moynagh's conviction on these
counts cannot be sustained because each count contains a
specification charging concealment . . . and no evidence was
introduced which supports any fraudulent concealment . . . .").
Griffin renders this proposition unsound.4
We note that this type of issue may, in proper
circumstances, be avoided: "[I]f the evidence is insufficient to
support an alternative legal theory of liability, it would
generally be preferable for the court to give an instruction
removing that theory from the jury's consideration." Griffin v.
4 We have on numerous occasions cited Yates in accord with
Griffin's interpretation of it. See, e.g., United States v.
Ochs, 842 F.2d 515, 520 (1st Cir. 1988); United States v.
Kavazanjian, 623 F.2d 730, 739-40 (1st Cir. 1980); United States
v. Driscoll, 449 F.2d 894, 898 (1st Cir. 1971), cert. denied, 405
U.S. 920 (1972).
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United States, 502 U.S. at 60. Aside from attempting to "unring
the bell," however, when there are alternative bases for
conviction, the trial court may be well advised to require a
proffer of the evidence linking a particular defendant with a
particular alternative. Also, the government should consider
avoiding alternative pleading altogether, or the trial court
might require each of the alternatives to be considered and
proved separately.
B. Sufficiency of the Evidence B. Sufficiency of the Evidence
Nieves-Burgos argues that the evidence at trial was not
sufficient to support his conviction on count four for violation
of 18 U.S.C. 924(c)(1) as to the firearm found in room 311.
1. Standard of Review 1. Standard of Review
In reviewing challenges to the sufficiency of evidence,
"[o]ur task is to review the record to determine whether the
evidence and reasonable inferences therefrom, taken as a whole
and in the light most favorable to the prosecution, would allow a
rational jury to determine beyond a reasonable doubt that the
defendants were guilty as charged." United States v. Mena-
Robles, 4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied sub nom.
Rivera v. United States, 114 S. Ct. 1550 (1994). We therefore
resolve all credibility issues in favor of the verdict. See
United States v. Torres-Maldonado, 14 F.3d at 100 (citation
omitted). We acknowledge that a jury's determination need not be
grounded in direct evidence; rather it may be based wholly on
circumstantial evidence. See id. In addition, the evidence
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"'need not exclude every reasonable hypothesis of innocence; that
is, the factfinder may decide among reasonable interpretations of
the evidence.'" Id. (quoting United States v. Cassiere, 4 F.3d
1006, 1011 (1st Cir. 1993) (citation omitted)). The court must
satisfy itself "that the guilty verdict finds support in 'a
plausible rendition of the record.'" United States v. Echeverri,
982 F.2d 675, 677 (1st Cir. 1993) (quoting United States v.
Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied, 113 S.
Ct. 1005 (1993)).
2. Analysis 2. Analysis
Section 924(c)(1), 18 U.S.C., makes unlawful the "use"
of a firearm "during and in relation to" any Federal drug-
trafficking crime. 18 U.S.C. 924(c)(1).5 A conviction under
this section results in a mandatory sentence of imprisonment for
a term of at least five years. See id. Nieves-Burgos was
convicted of using the firearm found in room 311 during and in
relation to the crime of possessing with the intent to distribute
the controlled substance cocaine.
We examine the evidence to determine, first,
appellant's possessory interest in the firearm at issue, see
United States v. Torres-Maldonado, 14 F.3d at 102 (citing United
States v. Harrison, 931 F.2d 65, 71 (D.C. Cir.), cert. denied,
502 U.S. 593 (1991)) ("in order to establish that a defendant
'used' a firearm for purposes of section 924(c)(1), 'the
government must prove that the defendant actually or
5 See supra note 2.
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constructively possessed it'"), and, second, whether there exists
"some facilitative nexus between the weapon and the criminal
activity." United States v. Castro-Lara, 970 F.2d 976, 983 (1st
Cir. 1992), cert. denied sub nom. Sarraff v. United States, 113
S. Ct. 2935 (1993).
a. Possession a. Possession
Nieves-Burgos is alleged to have been in constructive
possession of the gun found in room 311. Constructive possession
exists when a person "knowingly has the power and intention at a
given time to exercise dominion and control over [a firearm],
either directly or through others." United States v. Torres-
Maldonado, 14 F.3d at 102.
The evidence indicates, though not overwhelmingly, that
Nieves-Burgos was in constructive possession of the firearm found
in room 311. The evidence supports the existence of the
following facts: Nieves-Burgos rented and occupied room 311; he
was a direct participant in the drug distribution scheme; the gun
was found in a zippered bag, also containing $2,000 in cash, on a
couch in room 311; Nieves-Burgos was less than two feet from the
gun. Nieves-Burgos concedes in his brief that he "clearly was in
control of Room 311." A jury reasonably could infer from these
facts that the cash found in the bag that contained the gun was
drug trafficking proceeds, and that Nieves-Burgos, a principal in
the drug trafficking scheme who concededly was in control of the
room, had knowledge of what was in the bag, and, because of his
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proximity to the gun, had the power and intention to exercise
dominion over it.
Clearly, there is evidence in the record that weighs
against this conclusion: no witness could link the gun or the
bag directly to Nieves-Burgos; the bag concealing the gun was
zippered; several co-defendants were found sitting within
several feet of the gun, and Gotay-Col n, who was seated on the
couch, may have been closer to the gun than was Nieves-Burgos.
Nonetheless, our role is not to weigh the evidence; we are merely
to ensure that some evidence exists to support sufficiently the
jury's determination. See United States v. Mena-Robles, 4 F.3d
at 1031. Again, the evidence supports the inference that Nieves-
Burgos was in constructive possession of the gun: He concedes
that he "clearly was in control of Room 311"; he was a principal
with respect to the underlying offense of possession with intent
to distribute; and, he was found near -- less than two feet from
-- the gun.
This result is consistent with Torres-Maldonado, in
which we concluded that the evidence at trial was insufficient to
establish that appellants Torres-Maldonado and Gotay-Col n were
in constructive possession of the gun found in room 311. See
United States v. Torres-Maldonado, 14 F.3d at 102-03. We
considered to be significant the absence of evidence that either
appellant was involved in the drug distribution scheme: "Unlike
the evidence against the other defendants . . . the evidence
against Torres-Maldonado and Gotay-Col n failed to establish any
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connection between these two defendants, on one hand, and those
drug distribution transactions which appeared to involve guns, on
the other." Id. at 102. Again, the evidence here shows that
Nieves-Burgos was a direct participant in the drug distribution
scheme.
b. Facilitative Nexus b. Facilitative Nexus
Use, as that term applies in 924(c)(1), requires more
than mere possession of a firearm, but does not require outwardly
apparent utilization: "[the] weapon need not be brandished,
displayed or discharged." United States v. Reyes-Mercado, 22
F.3d 363, 367 (1st Cir. 1994) (citations omitted). To sustain a
conviction under this section for the use of a firearm, there
must be shown "some facilitative nexus between the weapon and the
criminal activity." Id. (citations omitted).
We have stated that, "'the government need not prove
actual possession by the defendant, only that the firearm was
readily accessible for the defendant's use' and that '[p]lacing a
weapon nearby to protect a drug operation comes within the
definition of "used"' for purposes of section 924(c)." United
States v. Wight, 968 F.2d 1393, 1396 (1st Cir. 1992) (citing
United States v. Abreu, 952 F.2d 1458, 1466 (1st Cir.), cert.
denied, 502 U.S. 994 (1992)). "[W]here a drug trafficker is not
carrying a gun on his person, but has one nearby, the court's
critical concern is not whether the gun was 'instantly available'
or 'exclusively dedicated to the narcotics trade,' but whether it
was 'available for use' in connection with the narcotics trade."
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United States v. Castro-Lara, 970 F.2d at 983. Among the factors
we examine in determining whether a gun was available for use in
connection with a drug operation are the proximity of the gun to
the drugs and drug proceeds and the availability of the gun to
the defendant. See, e.g., United States v. Paulino, 13 F.3d 20,
26 (1st Cir. 1994) ("Drugs, drug paraphernalia, and a loaded
revolver were located in close proximity to one another.
[Appellant] had an apparent possessory interest in, and a
significant degree of control over, the premises. On these
facts, a reasonable factfinder certainly could find the requisite
facilitative nexus . . . ."); United States v. Castro-Lara, 970
F.2d at 983 ("Appellant was apprehended in his car, at the scene
of a drug pickup, with the gun inside the car's trunk. . . . [W]e
believe a rational jury was free to conclude that the location of
the firearm -- near a large sum of cash, in close proximity to
live ammunition, and at a place where drugs were to be delivered
-- coupled with the timing -- [appellant] brought the gun to the
airstrip in the course of taking delivery of a sizable quantity
of cocaine -- supported a finding that the firearm was 'available
for use' during and in relation to the drug trafficking crime.").
There was testimony at trial that the gun was found in
room 311 in a zippered bag less than two feet from Nieves-Burgos,
and that also found in the room were several quantities of
cocaine, bundles of cash, and various instruments and supplies
typically utilized for packaging cocaine. This evidence is
sufficient to support a finding that the gun in room 311 was used
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by Nieves-Burgos to protect the drugs of which he was in
possession. Although there is evidence in the record that weighs
against this conclusion, the jury presumably considered all of
the evidence and drew the permissible inference that the gun was
used by Nieves-Burgos during and in relation to his possession
with intent to distribute cocaine, in violation of 924(c)(1).
See United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.
1991) ("the factfinder may decide among reasonable
interpretations of the evidence").
CONCLUSION CONCLUSION
Nieves-Burgos' conviction is supported sufficiently by
the evidence and stands without error. The conviction is
affirmed.
Affirmed. Affirmed.
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