United States v. Joseph Gullity ( 1992 )

USCA1 Opinion

          December 14, 1992     [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT




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          No. 92-1586

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   JOSEPH GULLITY,

                                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, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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                              _________________________

               Dana A. Curhan for appellant.
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               Lincoln  C. Almond,  United States  Attorney, and  Gerard B.
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          Sullivan,  Assistant   United  States  Attorney,   on  brief  for
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          appellee.

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                    Per  Curiam.  Defendant-appellant Joseph Gullity, a/k/a
                    Per  Curiam
                    ___________

          Feme Adedotun, was charged with  possessing heroin with intent to

          distribute the  drug, 21 U.S.C.    841(a)(1),  and conspiring  to

          possess heroin with an intent to distribute it.  21 U.S.C.   846.

          A  jury found him  guilty on both  counts.  Gullity  appeals.  We

          affirm.

                    Gullity's appeal advances only a solitary assignment of

          error:   "Whether the evidence was sufficient, when viewed in the

          light most favorable to the government, to establish (a) that the

          defendant possessed  the contraband found in the  vicinity of the

          car  in  which  he  had  been  a   passenger,  and  (b)  that  he

          participated   in  a   conspiracy   with  codefendant   Akinola."

          Appellant's  Brief  at 1.    However,  Gullity  never  moved  for

          judgment of acquittal in the district court and, therefore, never

          preserved  this issue  for appeal.   It  is firmly  settled that,

          under such circumstances, "the  defendant forfeits the benefit of

          the customary standard  of review, thereby negating any  claim of

          evidentiary insufficiency  unless affirming the  conviction would

          work  a 'clear and gross  injustice.'"  United  States v. Castro-
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          Lara,  970  F.2d 976,  980 n.2  (1st  Cir. 1992),  quoting United
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          States  v. Cheung,  836 F.2d  729, 730  n.1 (1st Cir.  1988) (per
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          curiam).   Having carefully reviewed  the parties' briefs and the

          trial transcript, we see no hint of injustice here.  Indeed, even

          under the ordinary standard  of review applicable to sufficiency-

          of-the-evidence  challenges, see, e.g.,  United States  v. Maraj,
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          947 F.2d 520, 522-23 (1st  Cir. 1991), we have no doubt  but that


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          the evidence would be judged sufficient to convict.  

                    We need go no further.  Because it clearly appears that

          this appeal presents no substantial question, we summarily affirm

          the judgment below.  See 1st Cir. Loc. R. 27.1.
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          Affirmed.
          Affirmed
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