United States v. Barry Franz Verdieu, John Peterson Alexis ( 2013 )


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  •            Case: 12-12419   Date Filed: 05/30/2013   Page: 1 of 8
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-12419
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 2:11-cr-00066-JES-DNF-2
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    BARRY FRANZ VERDIEU,
    JOHN PETERSON ALEXIS,
    Defendants - Appellants.
    ________________________
    Appeals from the United States District Court
    for the Middle District of Florida
    ________________________
    (May 30, 2013)
    Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Case: 12-12419     Date Filed: 05/30/2013    Page: 2 of 8
    Barry Verdieu and John Alexis appeal their convictions for carrying a
    firearm in relation to, or possessing a firearm in furtherance of, a drug trafficking
    crime, in violation of 
    18 U.S.C. §§ 924
    (c)(1)(A)(i) and 2. Verdieu and Alexis each
    argue that the evidence at trial was insufficient to sustain their convictions for this
    offense.
    I. FACTS AND PROCEDURAL HISTORY
    On June 22, 2011, Verdieu rented a Chevrolet Traverse sport utility vehicle
    from Enterprise Car Rental in West Palm Beach, Florida. Two days later, on June
    24, Verdieu and Alexis drove the Traverse to the Edison Mall in Fort Meyers
    where Alexis had arranged to purchase 3,000 oxycodone pills for $10,500 from a
    confidential informant (CI) cooperating with the Drug Enforcement Administration
    (DEA). DEA agents and local law enforcement officers were waiting for Verdieu
    and Alexis at the mall.
    After parking the Traverse in the mall parking lot, Verdieu and Alexis
    entered the mall, where Alexis met the CI in the food court. When Alexis failed to
    persuade the CI to conduct the drug sale in the parking lot, Alexis and Verdieu
    returned to the Traverse so that Alexis could retrieve the cash. Verdieu then
    remained in the car while Alexis went back to the food court to finish the
    transaction.
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    At the food court Alexis and the CI prepared to exchange “a big wad of
    cash” for a bag of pills. The transaction was interrupted when Alexis “received a
    phone call from someone . . . and abruptly got up and . . . left.” Alexis returned to
    the Traverse, where Verdieu was waiting in the driver’s seat, and got in the front
    passenger side.
    At this point DEA agents moved in and arrested the pair. As agents were
    handcuffing Verdieu, one asked him if he had any guns. Verdieu responded that
    he had one in the back seat of the Traverse, in a laptop computer bag. Although
    the agents did not find the gun in the back seat or the laptop bag, they found a fully
    loaded .38 caliber semi-automatic pistol between the driver’s seat and the front
    passenger seat, in the Traverse’s open center console. The firearm was located
    alongside a partially unwrapped sandwich, an open bottle of water, a camera case,
    a phone charger, and a CD. The gun was positioned in such a way that it could be
    easily withdrawn from the Traverse’s console by either the driver or the front
    passenger. The agents also found $10,500 in Verdieu’s pants pocket.
    Verdieu and Alexis were each charged with conspiring to possess and
    distribute oxycodone, in violation of 
    21 U.S.C. § 846
    , and carrying a firearm in
    relation to, or possessing a firearm in furtherance of, a drug trafficking offense, in
    violation of 
    18 U.S.C. §§ 924
    (c)(1)(A)(i) and 2. Alexis pleaded guilty to the
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    conspiracy charge, but proceeded to trial on the gun charge; Verdieu proceeded to
    trial on both counts.
    At trial, following the government’s case-in-chief, the defendants each
    moved for judgments of acquittal on their respective firearm charge, arguing that
    the government failed to produce sufficient evidence to show that the pistol was
    more than “coincidentally” present in the Traverse. The district court denied the
    motion and the jury convicted each defendant of all counts. On its special verdict
    form, the jury indicated that it found Verdieu and Alexis guilty of violating
    § 924(c) both because the pair carried a firearm in relation to their attempt to
    purchase oxycodone, and because they possessed a firearm in furtherance of their
    attempt to purchase oxycodone. This appeal followed.
    II. DISCUSSION
    On appeal, Verdieu and Alexis each argue that the evidence was insufficient
    to sustain the jury’s verdicts on their firearm convictions because the government
    failed to “show some nexus between the firearm and the drug selling operation.”
    “We review de novo a District Court’s denial of judgment of acquittal on
    sufficiency of evidence grounds, considering the evidence in the light most
    favorable to the Government, and drawing all reasonable inferences and credibility
    choices in the Government’s favor.” United States v. Capers, 
    708 F.3d 1286
    , 1296
    (11th Cir. 2013). “A jury’s verdict cannot be overturned if any reasonable
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    construction of the evidence would have allowed the jury to find the defendant
    guilty beyond a reasonable doubt.” United States v. Herrera, 
    931 F.2d 761
    , 762
    (11th Cir. 1991). “The evidence need not be inconsistent with every reasonable
    hypothesis except guilt, and the jury is free to choose between or among the
    reasonable conclusions to be drawn from the evidence presented at trial.” United
    States v. Poole, 
    878 F.2d 1389
    , 1391 (11th Cir. 1989). But “[w]hen the
    government relies on circumstantial evidence, reasonable inferences, not mere
    speculation, must support the conviction.” United States v. Mendez, 
    528 F.3d 811
    ,
    814 (11th Cir. 2008).
    Section 924(c) states, in pertinent part, “any person who, during and in
    relation to any . . . drug trafficking crime . . . uses or carries a firearm, or who, in
    furtherance of any such crime, possesses a firearm, shall, in addition to the
    punishment provided for such . . . drug trafficking crime,” be subject to enhanced
    penalties enumerated in the statute. 
    18 U.S.C. § 924
    (c)(1)(A). “Thus, the
    enhanced penalties are triggered in one of two ways: under the ‘during and in
    relation to . . . uses or carries’ prong, or under the ‘in furtherance of . . . possesses’
    prong.” United States v. Haile, 
    685 F.3d 1211
    , 1217 (11th Cir. 2012) (quoting
    § 924(c)(1)(A)), cert. denied, 
    133 S. Ct. 1723
     (2013) & 
    133 S. Ct. 1724
     (2013).
    Because our de novo review satisfies us that the evidence was sufficient to convict
    Verdieu and Alexis under the “in furtherance of . . . possesses” prong, we do not
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    consider whether it was also sufficient to convict them under the “during and in
    relation to . . . uses or carries” prong. See § 924(c)(1)(A).
    To prove that a defendant possessed a firearm “in furtherance of” a drug
    trafficking crime, “the prosecution [must] establish that the firearm helped,
    furthered, promoted, or advanced the drug trafficking.” United States v. Timmons,
    
    283 F.3d 1246
    , 1252 (11th Cir. 2002). This requires “a showing of some nexus
    between the firearm and the drug selling operation.” 
    Id. at 1253
     (quotation marks
    omitted). To determine whether such a “nexus” exists, we consider a non-
    exclusive list of factors, including:
    the type of drug activity that is being conducted, accessibility of the
    firearm, the type of the weapon, whether the weapon is stolen, the
    status of the possession (legitimate or illegal), whether the gun is
    loaded, proximity to the drugs or drug profits, and the time and
    circumstances under which the gun is found.
    
    Id.
     (quotation marks omitted).
    Verdieu and Alexis argue that the government failed to prove a nexus
    between the gun found in the center console and the oxycodone deal because
    “mere presence of a firearm at the time of the underlying federal crime is
    insufficient to support a [§] 924(c) conviction.” While we certainly agree that as a
    matter of law proof of “mere presence of a firearm in an area where a criminal act
    occurs” is not sufficient to prove a violation of § 924(c), Timmons, 
    283 F.3d at 1252
     (quotation marks omitted), here the evidence went beyond proof of “mere
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    presence.” Specifically, the loaded .38 caliber semiautomatic pistol was found in
    the rented Traverse’s center console, within inches of where Verdieu and Alexis
    were sitting at the time of their arrests, readily accessible to each. Verdieu, sitting
    in the driver’s seat, was found with $10,500 in his pocket, the precise amount
    negotiated for the 3,000 oxycodone pills that Alexis intended to purchase from the
    CI. Alexis, sitting in the passenger seat, had repeatedly attempted to persuade the
    CI to leave the food court and to conduct the drug transaction outside, where
    Verdieu and the pistol were waiting. The jury heard testimony that when DEA
    agents arrested the pair, the center console was open and the firearm was located
    next to a partially unwrapped sandwich and an opened bottle of water. And
    although Verdieu lawfully purchased the firearm in September 2010, the jury also
    learned that Verdieu’s concealed weapon permit was expired at the time of
    purchase, and at the time of this offense.
    In sum, this evidence is sufficient to establish a nexus between the pistol and
    the drug transaction because a reasonable jury could conclude that Alexis intended
    to lure the CI to the parking lot, where Verdieu was waiting with the gun. In turn,
    the evidence is sufficient to prove that Verdieu and Alexis possessed the pistol in
    furtherance of their conspiracy to possess and distribute oxycodone. See Haile,
    685 F.3d at 1219–20; Timmons, 
    283 F.3d at 1253
    . On this record, the district
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    court properly rejected their motions for judgment of acquittal, and we will not
    reverse their § 924(c) convictions here.
    III. CONCLUSION
    For these reasons, Verdieu’s and Alexis’s § 924(c) convictions are
    AFFIRMED.
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Document Info

Docket Number: 1212419

Judges: Marcus, Martin, Kravitch

Filed Date: 5/30/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024