United States v. Wight

• Court: Court of Appeals for the First Circuit
• Decided: July 7, 1992
• Docket: 91-2212
• Status: Published

Opinion

USCA1 Opinion

July 7, 1992        UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 91-2212

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  PHILLIP A. WIGHT,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                       [Hon. Shane Devine, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

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

                                 ____________________

            Martin  K.  Glennon  with  whom  Martin  K.  Glennon  Professional
            ___________________              _________________________________
        Association was on brief for appellant.
        ___________
            Peter  E. Papps, First Assistant United States Attorney, with whom
            _______________
        Jeffrey R. Howard, United States Attorney, was on brief for appellee.
        _________________

____________________

____________________

        _____________________

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

FUSTE, District Judge.   After a  jury trial, appellant
                           ______________

          Phillip  Wight was  convicted  of four  counts  of a  multi-count

          indictment  charging  both  controlled  substances  and  firearms

          violations.1    On  appeal,  he  argues  that  the  evidence  was

          insufficient to support his  firearms convictions under 18 U.S.C.

            924(c)(1)  (possession of a  firearm during a  drug trafficking

          crime)  and 18  U.S.C.    922(g)(1)  (felon  in possession  of  a

          firearm).  Finding  that there is sufficient evidence  to sustain

          the convictions, we affirm.
                              affirm

                                          I.
                                          I.

                                      Background
                                      Background
                                      __________

                    The  facts giving rise to Wight's  appeal, for the most

          part,  are  not  in  dispute.    Codefendant  Edward  Dunbar  was

          approached  by an undercover police  officer who sought  to buy a

          large quantity of marijuana.  After several days of searching for

          potential sources,  Dunbar determined that appellant  Wight could

          supply the potential buyers ten pounds of marijuana.  On March 9,

          1990, law  enforcement agents  made arrangements to  purchase the

          controlled substance.   Dunbar agreed  to meet them  at a  Dunkin

          Donuts  parking lot in Manchester, New Hampshire.  At the initial

____________________

          1Count  I of  the indictment  charged appellant  Wight  and other
          codefendants with conspiracy to distribute marijuana in violation
          of 21 U.S.C.    846;  Count V charged  appellant with  possession
          with  intent to  distribute marijuana in  violation of  21 U.S.C.
            841(a)(1); Counts VI and  VII charged appellant with possession
          of a firearm  during a drug trafficking crime in  violation of 18
          U.S.C.   924(c)(1), and with  possession of a firearm by  a felon
          in violation of  18 U.S.C.    922(g)(1).  Count  IX charged  only
          codefendant Fields with possessing the same firearm during a drug
          trafficking crime, 18 U.S.C.   924(c)(1).

                                         -2-
                                          2

meeting, Dunbar and  Wight agreed  to sell the  marijuana to  the

          agents  later that  day.   After  a  telephone call  between  the

          parties,  they  met  at  a  Burger  King  parking  lot,  also  in

          Manchester.   Wight  arrived at  the meeting in  a van  driven by

          codefendant  Michael  Fields.    Wight was  seated  in  the front

          passenger  seat.    Codefendant  Dunbar arrived  in  a  different

          vehicle.  An undercover officer approached  the passenger side of

          the van  and asked  Wight whether  he had  the marijuana.   Wight

          turned  around, pointed to a large plastic bag located behind him

          containing  what appeared to be marijuana, and pulled out a small

          plastic  sandwich bag containing a  drug sample.   At that point,

          the  officer gave  a signal  and Wight,  Dunbar, and  Fields were

          arrested.

                    At the moment of  the arrest, law enforcement personnel

          seized, but  did not search, the  van.  The vehicle  was taken to

          the  Manchester police  station,  where an  inventory search  was

          conducted.   During the search, police discovered an operable 9mm

          Interdynamic  pistol.   The  weapon was  located underneath  some

          newspapers behind the two front seats of the van.  The pistol was

          in  a  partially  unzipped  case  with  the  opening  facing  the

          passenger seat of the van where appellant Wight sat.

                    Testimony at  trial revealed that on  the morning prior

          to the drug sale, Dunbar had brought the weapon to the  residence

          shared by Wight and  Fields.  Dunbar gave  the weapon to  Fields,

          instructing him that it was available for use if necessary.

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                                          3

Based  on these  facts Wight,  Dunbar, and  Fields were

          indicted.  While  Dunbar pled  guilty, Fields and  Wight went  to

          trial.   Both Fields and  Wight were convicted  of the controlled

          substances counts; however, while the jury convicted Wight of the

          two firearms violations, they  acquitted Fields of possessing the

          Interdynamic  pistol during  a drug  trafficking crime.   The two

          firearms convictions form the basis for Wight's appeal.

                                         II.
                                         II.

                                      Discussion
                                      Discussion
                                      __________

                    Appellant's  sole  argument  on  appeal   is  that  the

          evidence at trial was insufficient to support his convictions for

          carrying  a firearm during or  in relation to  a drug trafficking

          crime2 and for  being a felon  in possession of  a firearm in  or

          affecting interstate commerce.3
                              
          ____________________

          2The statute, 18 U.S.C.   924(c)(1), in relevant part, provides:

                       Whoever,  during and  in  relation to  any
                    crime of violence or drug  trafficking crime 
                    . . .  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  violence or drug
                    trafficking    crime,    be   sentenced    to
                    imprisonment for five years. 

          18 U.S.C.   924(c)(1).

          3Section 922(g)(1) of Title 18 provides:

                    (g)  It shall be unlawful for any person -- 

                         (1) who has been convicted  in any court
                    of, a  crime punishable by imprisonment for a
                    term exceeding one year; to .  . . possess in
                    or   affecting   commerce,  any   firearm  or
                    ammunition.

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                                          4

In reviewing  a sufficiency of the  evidence challenge,

          this  court will  look  to the  evidence  as a  whole,  including

          reasonable inferences drawn from the evidence, in the  light most

          favorable  to the  government, seeking  to determine  whether any

          rational  trier  of fact  could have  found  the elements  of the

          offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S.
                                              ___________________

          307, 319 (1979); United States v. Abreu, 952 F.2d 1458, 1466 (1st
                           ______________________

          Cir.),  cert. denied, ___ U.S. ___, 112 S.Ct. 1695 (1992); United
                  ____________                                       ______

          States  v.  Sabatino, 943  F.2d 94,  97  (1st Cir.  1991); United
          ____________________                                       ______

          States  v.  Batista-Polanco, 927  F.2d  14, 17  (1st  Cir. 1991);
          ___________________________

          United States v.  Ruiz, 905 F.2d 499,  502 (1st Cir. 1990)  (same
          ______________________

          standard   in  Fed.  R.  Crim.  P. 29   motion  for  judgment  of

          acquittal).  It is  not our role to weigh witness credibility and

          we  will  resolve all  such issues  in  favor of  the government.

          Batista-Polanco,  927  F.2d  at  17;  United  States  v.  Passos-
          _______________                       ___________________________

          Paternina,  918 F.2d 979, 983 (1st Cir.), cert. denied, 111 S.Ct.
          _________                                 ____________

          1637  (1990), and  cert. denied,  111 S.Ct.  2809 (1991).   Also,
                        ___  ____________

          evidence  sufficient to convict  may be  entirely circumstantial,

          with  the factfinder  remaining free  to choose  among reasonable

          interpretations of  the evidence.   Batista-Polanco, 927  F.2d at
                                              _______________

          17;  United States  v. McDowell,  918 F.2d  1004, 1010  (1st Cir.
               __________________________

          1990); United States  v. Boylan,  898 F.2d 230,  243 (1st  Cir.),
                 ________________________

          cert. denied, ___ U.S. ___, 111 S.Ct. 139 (1990).
          ____________

                                A.  Section 924(c)(1)
                                A.  Section 924(c)(1)
                                    _________________

____________________

          18 U.S.C.   922(g)(1).

                                         -5-
                                          5

To establish a violation of 18 U.S.C.   924(c)(1),  the

          government  had to prove beyond  a reasonable doubt  (1) that the

          firearm  "was 'related  to,' or  played some  other role  in, the

          underlying  crime"; and (2) that  "the defendant must have 'used'

          or 'carried' the firearm."   United States v. Torres-Medina,  935
                                       ______________________________

          F.2d  1047,  1048-49  (9th Cir.  1991).    Wight  admits that  he

          procured  the marijuana at the request of Dunbar, was a passenger

          in  the van  which  carried the  marijuana,  and engaged  in  the

          process  of selling the drug  to an undercover  police officer at

          the time of his arrest.   There is no controversy as to the  fact

          that the Interdynamic  9mm pistol was  found in  the van used  to

          transport  the drugs  only  one day  after  the pistol  had  been

          delivered by Dunbar to  the residence shared by Fields  and Wight

          to be  used  if necessary.    While this  constitutes  sufficient

          evidence to establish  that the  weapon was related  to the  drug

          crime,  Wight's challenge  goes to  whether there  was sufficient

          evidence  to  establish that  he  used  or  carried the  firearm.

          Specifically,  he  argues that  the  government  failed to  prove

          beyond a reasonable doubt that he knew the weapon was  in the van

          and, without such  proof, the section 924(c)(1)  count should not

          have been submitted to the jury.  We disagree.

                    In  Abreu,  952  F.2d  at  1466,  we  found  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

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                                          6

section 924(c).   See also  United States v.  Hadfield, 918  F.2d
                            ___ ____  __________________________

          987, 997-98 (1st Cir.  1990) (in a "drug fortress"  context, "the

          critical concern  is the presence  or absence  of a  facilitative

          nexus"),  cert.  denied, ___  U.S.  ___, 111  S.Ct.  2062 (1991);
                    _____________

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

          (conviction  sustained if possessor of a weapon intended it to be

          available for  possible use  during or immediately  following the

          transaction); United States v. Featherson, 949 F.2d 770, 776 (5th
                        ___________________________

          Cir.)  (sufficient for  the government  to show  that the  weapon

          "could  have  been  used"  to  protect  or  facilitate  the  drug

          trafficking),  cert.  denied,  60  U.S.L.W.  3735 (1992);  United
                         _____________                               ______

          States  v.  Young-Bey,  893  F.2d  178,  181  (8th   Cir.  1990).
          _____________________

          Examining the circumstances surrounding the firearm's presence in

          the van, we find that there is sufficient  evidence in the record

          to support  a jury  finding connecting  the  weapon to  appellant

          Wight's drug trafficking.

                    It is undisputed  that Dunbar originally delivered  the

          firearm  to the  residence shared  by Wight  and Fields  with the

          understanding  that the  weapon was for  their use  if necessary.

          Wight supplied the marijuana  and played a principal role  in the

          drug transaction.   One day later, the  firearm was found  in the

          van  used  to transport  the  drug to  the place  where  the drug

          transaction was held.  When found, the weapon was in a partially-

          opened  case, facing appellant and within his grasp.  Given these

          facts,  it was reasonable  for a rational trier  of fact to infer

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                                          7

that appellant knew  the weapon's location,  had ready access  to

          it, and possessed it in the van to facilitate the drug deal.  

                    Appellant also suggests  that the  jury's acquittal  of

          codefendant  Fields  with respect  to  Count  IX  for  a  section

          924(c)(1)  violation  is  further  evidence  that  the government

          failed to  establish the  necessary elements beyond  a reasonable

          doubt.   The government argues that  even if we were  to view the

          verdicts as inconsistent, based on the reasoning of United States
                                                              _____________

          v.  Powell, 469 U.S. 57 (1984), inconsistency is not a sufficient
          __________

          reason to set aside the verdict provided that sufficient evidence

          supports  the count  of conviction.   See  also United  States v.
                                                ___  ____ _________________

          Bernal-Rojas,  933 F.2d 97, 100 (1st Cir. 1991); United States v.
          ____________                                     ________________

          Bucuvalas,  909 F.2d  593 (1st  Cir. 1990)  (rationale  of Powell
          _________                                                  ______

          applied where two co-conspirators involved).  We  have found that

          there was  sufficient evidence to support  appellant's conviction

          pursuant to section 924(c)(1). In addition,  the Wight and Fields

          section 924(c)(1) verdicts are,  in fact, consistent.  Obviously,

          the  jury found  that  Wight's leadership  role  in the  criminal

          activity,  coupled with the fact  that the weapon  appeared to be

          more accessible to him than it was to Fields, made it more likely

          that it  was he, and  not Fields, who  sought the benefit  of the

          weapon's  presence  during  the drug  transaction.    Appellant's

          conviction  for possessing a  firearm during the  commission of a

          drug offense, 18 U.S.C.   924(c)(1), shall stand.  

                                B.  Section 922(g)(1)
                                B.  Section 922(g)(1)
                                    _________________

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                                          8

Appellant  also  challenges  his  conviction  under  18

          U.S.C.    922(g)(1).   Under  this statute,  the government  must

          establish  that: (1)  appellant  was previously  convicted of  an

          offense punishable by imprisonment for a term exceeding one year;

          and  (2) he  knowingly  possessed   a  firearm  in  or  affecting

          interstate commerce.  United  States v. Ramos, No. 91-1702,  slip
                                _______________________

          op.  at 4 (1st Cir. April 21,  1992); United States v. Smith, 940
                                                ______________________

          F.2d 710, 713 (1st Cir. 1991);  United States v. Rumney, 867 F.2d
                                          _______________________

          714, 721 (1st  Cir. 1989) (sufficiency of  the evidence challenge

          to  18 U.S.C.  App.  (1982  Ed.)    1202(a)(1),  the  predecessor

          statute to   922(g)),  cert. denied, 491 U.S. 908 (1989).   Wight
                                 ____________

          admits that  the government established  the requisite  predicate

          offense  and he does not  challenge the firearm's relationship to

          interstate commerce.  Rather, Wight argues that his mere presence

          in  the van is, by itself, insufficient to establish the "knowing

          possession"  element of  section 922(g)(1).   We  find sufficient

          evidentiary support in the record for the jury determination that

          appellant was a felon in possession of the firearm.  

                    In  the context  of drug offenses,  we have  found that

          "[k]nowledge may be inferred from  possession."  United States v.
                                                           ________________

          Lochan, 674  F.2d 960,  966 (1st Cir.  1982).  Possession  can be
          ______

          either actual or constructive,  sole or joint.  United  States v.
                                                          _________________

          Vargas, 945 F.2d 426, 428  (1st Cir. 1991); Batista-Polanco,  927
          ______                                      _______________

          F.2d at 19; United  States v. Martinez, 922 F.2d 914, 923-24 (1st
                      __________________________

          Cir. 1991); United States v. Latham, 874 F.2d  852, 861 (1st Cir.
                      _______________________

          1989);  United States  v. Calle-Cardenas,  837  F.2d 30,  32 (1st
                  ________________________________

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                                          9

Cir.), cert.  denied, 485  U.S. 1024 (1988).   In  order to  show
                 _____________

          constructive  possession,  the  government must  prove  that  the

          defendant  "had dominion  and  control over  the  area where  the

          contraband  was found."  United  States v. Barnes,  890 F.2d 545,
                                   ________________________

          549  (1st Cir. 1989), cert. denied, 494 U.S. 1019 (1990); Vargas,
                                ____________                        ______

          945 F.2d  at 428  (constructive possession found  where defendant

          was sole tenant  and occupant of  apartment immediately prior  to

          police raid); Lochan, 674  F.2d at 966 (reasonable to  infer that
                        ______

          driver  knowingly possessed  cocaine  found behind  rear seat  of

          automobile  owned  by  passenger).     The  government  may  show

          constructive  possession  through the  use  of  either direct  or

          circumstantial  evidence; however,  mere presence  or association

          with  another who  possessed  the contraband  is insufficient  to

          establish constructive  possession.  Batista-Polanco, 927 F.2d at
                                               _______________

          18; Barnes, 890 F.2d at 549.
              ______

                      While   this   court  has   upheld   convictions  for

          violations  of 18 U.S.C.    922(g)(1), United  States v. Minnick,
                                                 _________________________

          949 F.2d 8,  10 (1st Cir. 1991), cert. denied,  ___ U.S. ___, 112
                                           ____________

          S.Ct.  1698 (1992); United States v. Donlon, 909 F.2d 650, 655-56
                              _______________________

          (1st Cir. 1990); United States v. Rumney, 867 F.2d 714,  719 (1st
                           _______________________

          Cir.  1989)4, and  has discussed  constructive possession  in the

          context of 18 U.S.C.   922(h), United  States v. Lamare, 711 F.2d
                                         ________________________

          3, 5-6  (1st Cir.  1983), we have  not passed  upon a  conviction

____________________

          4Rumney was convicted as a felon in possession of a firearm under
          18 U.S.C.  App.    1202(a)(1).   This  section was  repealed  and
          reenacted in broader form, and recodified at 18 U.S.C.   922(g).

                                         -10-
                                          10

under  section  922(g)(1)  based  on  a  theory  of  constructive

          possession.5  Today, we  make explicit the obvious and  find that

          the element  of "knowing possession" under  section 922(g)(1) may

          be established by  proving that the defendant was in constructive

          possession  of a firearm.   We hold  that as long  as a convicted

          felon  knowingly has the power and  the intention at a given time

          of exercising dominion  and control  over a firearm  or over  the

          area  in which the weapon is located, directly or through others,

          he is in possession of the firearm.  In so holding, we join other

          circuits  which  have   applied  the   concept  of   constructive

          possession  in the  context  of prosecutions  under  18 U.S.C.   

          922(g)(1).6
                              
          ____________________

          5Constructive possession of a firearm has been discussed in First
          Circuit  cases in  a  different context.    In United  States  v.
                                                         __________________
          Parent, 954 F.2d  23 (1st Cir.  1992), we vacated  a judgment  of
          ______
          conviction under section 922(g)(1) where the trial court erred in
          giving  the  jury  a  supplemental  instruction  on  constructive
          possession without  first informing  the attorneys of  the jury's
          request.   In  the instruction,  attached as  an appendix  to the
          opinion,  constructive possession was  defined.  954  F.2d at 28.
          In the second  case, United States v. Jackson,  918 F.2d 236, 243
                               ________________________
          (1st  Cir. 1990),  we simply alluded  to the fact  that there was
          overwhelming evidence of either actual or constructive possession
          of the firearm in dismissing an alleged ineffective assistance of
          counsel claim.

          6United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992); United
           _____________________                                     ______
          States  v.   McKnight,  953  F.2d   898,  901  (5th   Cir.  1992)
          _____________________
          (constructive possession where defendant knowingly has ownership,
          dominion or control over contraband itself or over premises where
          contraband  is located),  petition for  cert. filed,  60 U.S.L.W.
                                    _________________________
          ___, (U.S. Apr. 30,  1992) (No. _____); United States  v. Moreno,
                                                  ________________________
          933  F.2d 362,  373 (6th Cir.),  cert. denied, ___  U.S. ___, 112
                                           ____________
          S.Ct.  265 (1991); United States v. Wainwright, 921 F.2d 833, 836
                             ___________________________
          (8th Cir. 1990); United  States v. Sullivan, 919 F.2d  1403, 1430
                           __________________________
          (10th Cir. 1990); United States v. Terry, 911  F.2d 272, 278 (9th
                            ______________________
          Cir.  1990); United States v.  Garrett, 903 F.2d  1105, 1110 (7th
                       _________________________
          Cir.) ("[c]onstructive  possession exists when a  person does not
                  _________________________________________________________
          have actual possession  but instead knowingly  has the power  and
          _________________________________________________________________

                                         -11-
                                          11

While   appellant  Wight  argues  that  the  government

          established  only his  mere  presence in  the  vehicle where  the

          weapon was located,  we think  that the evidence,  viewed in  the

          light  most favorable to the government, allowed the jury to find

          beyond a reasonable doubt that he was  in constructive possession

          of the  weapon.  First,  it was established that  the firearm was

          taken to the residence he  shared with Fields the day  before the

          drug transaction was  scheduled to occur and then  transferred to

          the van sometime prior to the actual meeting.  It would have been

          entirely  reasonable for  the jury to  infer that  Wight, jointly

          with Fields,  exercised dominion  and control  over the  house to

          which the gun had been delivered and, accordingly,  had knowledge

          of the weapon's presence in the residence and its transfer to the

          van.   See United  States v. Munoz-Romo,  947 F.2d  170, 177 (5th
                 ___ ____________________________

          Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3761 (U.S. Jan.
                      ________________________

          7,  1992) (No. 91-1593); United  States v. Smith,  930 F.2d 1081,
                                   _______________________

          1085-86  (5th  Cir.  1991).    Second,  it  is  disingenuous  for

          appellant to argue that he  was merely present in the  van driven

          by Fields.   The evidence  established that Dunbar  put Wight  in

          contact  with the  buyers because  of his  ability to  supply ten

          pounds of marijuana.  Wight participated in the negotiations with

          the buyers  and, at  the time  of the  drug deal,  it was  he who

          transacted  the sale.   It was reasonable  for the jury  to infer

          that he, and  not Fields, was in charge of  the operation and, as
                              
          ____________________

          the  intention at a given  time to exercise  dominion and control
          _________________________________________________________________
          over  an object, either directly or through others") (emphasis in
          __________________________________________________
          original), cert. denied, ___ U.S. ___, 111 S.Ct. 272 (1990).
                     ____________

                                         -12-
                                          12

such, exercised  control over Fields, the van,  its contents, and

          the firearm.

                    We   think   that   the   facts   surrounding   Wight's

          participation and presence  in the van  are different from  cases

          where courts have absolved vehicle passengers of weapons charges.

          See Blue, 957 F.2d at 107-08 (only evidence produced was weapon's
          ___ ____

          discovery  in vehicle  and testimony  that defendant  "dipped his

          shoulder" as police officer approached vehicle); United States v.
                                                           ________________

          Soto, 779  F.2d 558, 560 (9th Cir.  1986) ("[m]ere proximity of a
          ____

          weapon to a  passenger in a car  goes only to  its accessibility,

          not  to the  dominion or  control"), cert.  denied, 484  U.S. 833
                                               _____________

          (1987).  Here, there was ample evidence to establish that Wight's

          presence  in the van was for the  purpose of drug trafficking and

          it  could be inferred  from this  fact that,  for purposes  of 18

          U.S.C.  922(g)(1),  he, as  a  convicted  felon, exercised  joint

          dominion or control over the vehicle  and its contents, including

          the firearm.  The gun  was contained in a zippered case  that was

          partially open and readily accessible to Wight.  The proximity of

          the  firearm to the passenger  and the illegal  cargo allowed the

          fact-finder to  convict of both  possessing a firearm  during the

          commission  of a  drug  offense, 18  U.S.C.    924(c)(1), and  of

          possessing  the   gun  after  a  felony   conviction,  18  U.S.C.

            922(g)(1).   See  United States  v. Wright,  932 F.2d  868, 881
                         ___  ________________________

          (10th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 428 (1991). 
                       ____________

                    Affirmed.
                    Affirmed
                    ________

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