United States v. Plummer

• Court: Court of Appeals for the First Circuit
• Decided: June 2, 1992
• Docket: 91-2301
• Status: Published

Opinion

USCA1 Opinion

June 2, 1992
                                 ____________________

        No. 91-2301

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  RONALD J. PLUMMER,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                  Cyr, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                             and Fuste,* District Judge.
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                                 ____________________

            Marvin H. Glazier with whom Vafiades,  Brountas & Kominsky was  on
            _________________           ______________________________
        brief for appellant.
            F.  Mark Terison,  Assistant  United States  Attorney,  with  whom
            ________________
        Richard S.  Cohen, United States Attorney, was on brief for the United
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        States.

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        *Of the District of Puerto Rico, sitting by designation.

CAMPBELL,  Senior Circuit Judge.  Defendant, Ronald
                                 ____________________

            Plummer, appeals from  his conviction after a bench  trial in

            the United  States District Court  for the District  of Maine

            for using and carrying a firearm during and in relation  to a

            drug  trafficking   crime,  in  violation  of   18  U.S.C.   

            924(c)(1).1    His  sole  argument  on  appeal  is  that  the

            evidence  was insufficient  to  support his  conviction.   We

            affirm.

                                          I.
                                          I.

                      In    February   1991,   pursuant   to   a   police

            investigation, confidential informant Paul Kinney arranged to

            purchase cocaine  from defendant  on behalf of  an interested

            buyer.   While defendant had  known Kinney for  six years, he

            had never  met or dealt  with the  buyer for whom  Kinney was

            allegedly making the  purchase.  Initially, defendant  agreed

            to  bring the drugs to  Kinney's door where  he would receive

            payment.  At some point, however, defendant  told Kinney that

            he would not be able to procure any cocaine and that he could

            only provide marijuana.  While Kinney  accepted this, he told

            defendant  that the buyer was  rather upset as  he had driven

____________________

            1.  Defendant  was   also   charged  with   distribution   of
            marijuana,  in violation  of 21 U.S.C.    841(a)(1)  and with
            possession of  a firearm  after having  been  convicted of  a
            felony, in  violation of 18  U.S.C.   922(g)(1)  & 924(a)(2).
            He  pled guilty to  these two counts  and was  tried only for
            using and carrying a firearm during and in relation to a drug
            trafficking  crime.  As  to this count,  defendant waived his
            right to a jury trial.

                                         -2-

several miles to make this deal.  After the cocaine deal fell

            through,  defendant was apparently  reluctant to  deliver the

            marijuana directly  to Kinney's house.   Taped  conversations

            revealed that defendant tried to get Kinney to meet him  at a

            store.   Upon cross-examination,  defendant admitted that  he

            did not want to go anywhere near  the unknown buyer after the

            cocaine deal fell through.  

                      Eventually,  defendant agreed to  drive to Kinney's

            residence  and  wait  for Kinney  to  come  out  to make  the

            purchase.  On February 27, 1991,  defendant, while sitting in

            his automobile, sold  a quarter pound of marijuana  to Kinney

            for  $750.   At  the time  of the  sale, Kinney  was standing

            outside of the car on the driver's side.  After defendant was

            arrested, Agent  William Keegan  noticed a  fully functioning

            Titan Tiger, .38 caliber revolver tucked into the  front seat

            of the car  "sitting against  the back of  the seat  directly

            where the driver  would sit."   The gun  was in an  unsnapped

            holster with  the barrel  end down.   While the  gun was  not

            loaded, Keegan found a  .38 caliber cartridge in  the console

            on  the  transmission  hump.     Keegan  testified  that  the

            cartridge could be  used in  the handgun that  was found  and

            that  it appeared  to  be  a live  cartridge.     He  further

            testified that  both the  gun and  the cartridge  were within

            easy reach of defendant and "immediately accessible."

-3-

After administering Miranda warnings  and receiving

            a  written  waiver of  rights,  Agent  Peter Arno  questioned

            defendant about the gun.   Arno testified that defendant said

            he  had the weapon for approximately one week and that Norman

            Allen had given  it to him "to hold."  Arno testified further

            that defendant had told him that the gun "was in the driver's

            seat behind his back."   Later, at trial, defendant testified

            that he never touched  or moved the gun after Allen placed it

            in the car    he simply "left it in the vehicle"     and that

            the  gun was on the passenger seat  next to him as opposed to

            behind him.  He also testified that he did not know there was

            a bullet in the car and that he had no idea how it might have

            gotten there.            Norman  Allen  confirmed defendant's

            testimony that  he was the owner  of the gun and  that he had

            given  it  to defendant  to hold.    Allen testified  that he

            tucked  the gun between the  driver's seat and passenger seat

            of defendant's car with "the barrel end  of the gun just into

            the seat  a little  bit."  He  denied having  placed the  gun

            where  the driver  would sit.   When  asked if  he  had given

            defendant  any  ammunition,  Allen   replied  that  he  "most

            certainly  did  not."    He further  testified  that  he  and

            defendant were "[n]ot really" good friends.

                      After  hearing all the  testimony and reviewing the

            parties'  briefs the  district  court found  defendant guilty

            beyond a reasonable doubt.  This appeal followed.

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II.
                                         II.

                      Defendant's only  argument  on appeal  is that  the

            evidence  was  insufficient  to  support  his  conviction for

            carrying  a  firearm  during  and  in  relation  to  a   drug

            trafficking  crime.   The statute  under which  defendant was

            convicted provides in pertinent part that

                      [w]hoever,  during and in relation to any
                      crime  of  violence  or drug  trafficking
                      crime .  . .  uses or carries  a firearm,
                      shall,  in  addition  to  the  punishment
                      provided  for such  crime of  violence or
                      drug trafficking crime,  be sentenced  to
                      imprisonment of not more than 5 years 
                      . . . .

            18 U.S.C.    924(c)(1).  To establish defendant's guilt under

            this  statute,  the  government  needed  to  prove  beyond  a

            reasonable doubt (1) that  the firearm at issue was  "related

            to"  or played a  role in an  underlying drug  crime; and (2)

            that the defendant  "used" or "carried" the firearm.   United
                                                                   ______

            States  v. Torres-Medina,  935 F.2d  1047, 1048-49  (9th Cir.
            ______     _____________

            1991).   Defendant concedes that  the presence of  the gun in

            his vehicle was sufficient to establish the second element of

            the  crime  -- that  he "carrie[d]  a  firearm."   See United
                                                               ___ ______

            States  v. Eaton, 890 F.2d 511, 512 (1st Cir.), cert. denied,
            ______     _____                                ____________

            495  U.S. 906 (1989).   Defendant  argues, however,  that the

            evidence was  insufficient to establish the  first element of

            the  crime    that  he carried the  gun "in relation  to" the

            drug trafficking crime for which he was convicted.  According

            to  defendant, the  gun was  not loaded,  it remained  in its

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holster and he  neither brandished it  nor made any  movement

            toward it.   Furthermore, defendant contends  that the record

            is devoid  of evidence that the  informant expected defendant

            to have a  gun or  that defendant exhibited  fear during  his

            conversations with  the informant.  Rather, defendant argues,

            the  evidence  was  uncontroverted that,  one  week  earlier,

            Norman  Allen  placed  the  gun in  defendant's  vehicle  for

            defendant  to  hold.   The  government's  evidence, defendant

            asserts, does nothing more than establish that the gun was in

            his possession at the time he  committed the drug trafficking

            offense.    Mere possession  of a  gun  during the  course of

            criminal conduct will not support a conviction, United States
                                                            _____________

            v. Payero, 888 F.2d 928, 929 (1st Cir. 1989).
               ______

                                         III.
                                         III.

                      In assessing a challenge  to the sufficiency of the

            evidence, this  court  looks  to the  evidence  as  a  whole,

            including reasonable  inferences drawn from it,  in the light

            most  favorable  to  the  verdict,  to  determine  whether  a

            rational trier of fact could have  found the defendant guilty

            beyond a reasonable doubt.  United States v. Batista-Polanco,
                                        _____________    _______________

            927 F.2d  14,  17  (1st Cir.  1991).   The  evidence  may  be

            entirely circumstantial and  the factfinder may choose  among

            reasonable interpretations of it.   Id.  Moreover, all issues
                                                ___

            of  credibility must  be  resolved in  favor of  the verdict.

            United  States v.  Passos-Paternina, 918  F.2d 979,  983 (1st
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Cir. 1990), cert. denied,  111 S. Ct. 1637 and  cert. denied,
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            111 S. Ct. 2809 (1991).

                      Viewing the evidence in the light most favorable to

            the verdict,  we believe that the evidence  was sufficient to

            allow a rational trier of fact to conclude that defendant was

            guilty beyond  a  reasonable  doubt.   In  United  States  v.
                                                       ______________

            Payero,  this  court  stated   that  "a  conviction  will  be
            ______

            sustained under  the  statute if  the possessor  of a  weapon

            intended to  have it  available for  possible  use during  or

            immediately following  the transaction, or  if it facilitated

            the transaction  by lending  courage to the  possessor.   The

            defendant's sole purpose in carrying the weapon need not have

            been facilitation  of the  drug trafficking crime."   Payero,
                                                                  ______

            888 F.2d  at 929.  It  could reasonably be inferred  that the

            gun found  here in defendant's car was  intended by him to be

            available  for possible  use or  otherwise to  facilitate the

            transaction.  There was evidence that defendant had moved the

            gun.   Agent Keegan testified that the gun was found "sitting

            against the back seat  directly where the driver  would sit."

            Norman Allen    who  allegedly gave the gun to  defendant "to

            hold"     however,  testified that  when he  gave the  gun to

            defendant,  he placed  it between the  driver's seat  and the

            passenger seat.   There was also evidence  that defendant was

            nervous  about the  drug transaction  because of  the unknown

            buyer and  the  fact  that the  cocaine  deal  fell  through.

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Finally,  a  bullet,  usable   in  the  gun,  was   found  in

            defendant's  car  easily accessible  to  the  driver.   Allen

            testified that he never gave defendant any ammunition for the

            gun.   He further testified  that he and  defendant were "not

            really" good friends.  From  this evidence the district court

            judge drew the following inferences:

                           I  draw  the  clear  inference  from
                      these   circumstances    and   beyond   a
                      reasonable   doubt    that   the   weapon
                      facilitated     his     involvement    in
                      trafficking   by    being   visible   and
                      available  and strategicly  [sic] located
                      so as to be quickly and easily available.

                           I do  not find  that  he could  have
                      forgotten  its  location there.    It was
                      there every time he got in and out.  I do
                      not have  to find,  in order to  find him
                      guilty, that it was  in the car solely to
                      facilitate the Kinney transaction.

                           If  the  weapon   had  no  role   or
                      advantage,  it would  have been  a simple
                      matter  to  have  removed  it   from  the
                      car . . . .    It is  sufficient  in this
                      case   for   it   to  have   been   there
                      strategically located, easily accessible,
                      visible and available.

            The district court's conclusions  were not unreasonable.2  It

            was  certainly reasonable to believe that  a person who while

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            2.  The  Assistant  United  States Attorney  conceded  during
            argument  that  the  court's  finding  that  the  weapon  was
            "visible"  was probably  incorrect.   There  was no  evidence
            Kinney saw it while defendant, before his arrest, was sitting
            in the  car.  But we  agree with the Assistant  United States
            Attorney that whether  or not the  revolver was then  visible
            was immaterial.   It was, in  any event, as the  court found,
            "strategically  located,   easily  accessible,  .   .  .  and
            available."

                                         -8-

undertaking  a  risky  drug  transaction  keeps a  gun  in  a

            prominent, accessible  and awkward  place in his  car (behind

            his back), and who also keeps an easily accessible bullet for

            the gun  in his car, is  carrying the gun in  relation to the

            drug transaction.  

                      It is true  the gun  was not loaded,  it was  never

            brandished  and Norman  Allen corroborated  defendant's claim

            that the gun belonged to him and that he had placed it in the

            car  for defendant  to  hold.    But  these  facts  were  not

            determinative of whether  or not the  necessary nexus to  the

            drug  transaction  had  been   established.    All  that  was

            necessary under  the statute  was that the  "circumstances of

            the case show that the  firearm facilitated or had a  role in

            the  crime,  such  as  emboldening   an  actor  who  had  the

            opportunity or ability to display or discharge the  weapon to

            protect  himself or  intimidate others,  whether or  not such

            display or discharge in  fact occurred. . . ."  United States
                                                            _____________

            v.  Rosado, 866 F.2d 967,  970 (7th Cir.),  cert. denied, 493
                ______                                  ____________

            U.S. 837 (1989); Payero,  888 F.2d at 929.   While the  facts
                             ______

            may permit  other inferences,  the factfinder is  entitled to

            choose  among reasonable  interpretations of  the evidence.  

            Batista-Polanco, 927 F.2d  at 17; see  also United States  v.
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            Hilton, 894  F.2d 485, 487  (1st Cir. 1990)  (the prosecution
            ______

            "need not exclude every reasonable hypothesis of innocence so

            long as  the total  evidence permits  a conclusion of  guilty

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beyond a  reasonable doubt.").   "Ultimately, whether  or not

            the  gun[] helped appellant commit the drug crime is a matter

            for a [trier of fact] applying common sense theories of human

            nature and causation."  United States v. Wilkinson, 926  F.2d
                                    _____________    _________

            22,  26 (1st  Cir.), cert.  denied, 111  S. Ct.  2813 (1991).
                                 _____________

            Moreover, "assessing  the credibility of witnesses  is solely

            the province of the trier of fact."  United States v.  Green,
                                                 _____________     _____

            887  F.2d 25, 28 (1st Cir. 1989) (citation omitted).  Finding

            no  error  in the  district  court's  finding that  defendant

            carried the gun in relation to the drug trafficking crime, we

            affirm defendant's conviction.

                      Affirmed.
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