United States v. Robert Hyson, United States of America v. Edward Ennis, A/K/A "Tiger", United States of America v. Richard Gomes ( 1983 )

LEVIN H. CAMPBELL, Chief Judge

(Concurring and Dissenting).

I concur in the reasoning and result of my colleagues on all points except the sufficiency of the evidence against Gomes. While the issue is close, I believe there is adequate evidence to support the verdict in his case.

The evidence “of course must be viewed in the light most favorable to the Government as the prevailing party.” United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977). See also United States v. Ciampaglia, 628 F.2d 632, 626 (1st Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 221 (1980). It establishes that for five weeks prior to his arrest in the apartment, Gomes and his girlfriend were in sole possession of the apartment. It also establishes that Gomes had been allowed to use the apartment by drug conspirator Hyson, who — although the actual renter of the apartment — chose not to live there (suggesting that he had some other purpose for the apartment, such as storing drugs). When arrested, Gomes volunteered the presence of the hashish to the police and the hashish was found stored in the very closet where Gomes kept his clothes. When found, it was wrapped in multiple packages for sale and constituted a very sizeable amount. There was also evidence that another conspirator, Ennis, maintained phone contact with Gomes, and that Gomes had met Martineau, a third conspirator.

This evidence indicates, beyond a reasonable doubt, that Gomes had been left in knowing control of the illegal hashish. From the very large quantity and the method of packaging, a jury could also infer that Gomes was well aware that the hashish was intended for sale — it was not simply the residue of a drug which the apartment owner might have had for his personal use. Just as unexplained possession of recently stolen property permits the inference of knowledge that the property was stolen, Barnes v. United States, 412 U.S. 837, 841-46, 93 S.Ct. 2357, 2360-63, 37 L.Ed.2d 380 (1973), possession of a commercial quantity of illegal drugs permits the inference of knowledge that the drugs are to be distributed. Further, the jury could reasonably infer that the other conspirators would never have allowed someone who was not a participant in their venture to possess and control the valuable contraband which they were in the business of selling. This inference is supported by United States v. Gainey, 380 U.S. 63, 67-68, 85 S.Ct. 754, 757-58, 13 L.Ed.2d 658 (1965), in which the Supreme Court upheld the inference that unexplained presence at an operating still is sufficient to convict the defendant of conducting the business of a distiller because “strangers to the illegal business rarely penetrate the curtain of secrecy.” The jury here could reasonably conclude that Gomes “ ‘in some sort associate[d] himself with the venture, that he participate[d] in it as something that he wish[ed] to bring about, that he [sought] by his actions to make it succeed.’ ” United States v. Francomano, 554 F.2d at 486 (quoting Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949)).

This is not a case of ambiguous and perhaps innocent “mere presence.” Gomes's long-term habitation of the apartment at the invitation of a drug merchant; his acquaintance with the other drug merchants; the known presence of a merchantable quantity of prepackaged drugs stashed in the same place he kept his clothes, all permit an inference of conscious complicity going beyond “mere presence.”

The eases cited by Gomes do not even suggest a contrary result. In United States v. Francomano, 554 F.2d 483, the defendants were present on a boat from which illegal drugs were seized but none of them were shown to have had knowledge nor reason to know of the presence of drugs on board. Moreover, they had a very plausible, innocent explanation for being on board. Gomes presents a different case be7 cause of his knowledge and control of the costly hashish, and the utter implausibility of his being put in such a position by the others unless he was regarded as a co-ven-turer. See also United States v. Mehtala, 578 F.2d 6 (1st Cir.1978).

In United States v. Mora, 598 F.2d 682 (1st Cir.1979), we reversed the defendant’s conviction of conspiracy to import a controlled substance. Mora’s travelling companion, Munoz, was caught with cocaine in false-bottom shoes. However,

[t]here [was] no evidence of any relationship between appellant and Munoz other than that they briefly travelled together in Colombia. There [was] no evidence that he helped her get to Colombia, that he helped her get the cocaine or knew she had it, that he helped her get false-bottomed shoes or knew she had them, or that he was in any way linked to her criminal venture.

Id. at 683. Again, Gomes’s knowing possession is a distinguishing feature.

United States v. Cincotta, 689 F.2d 238 (1st Cir.), cert. denied, — U.S. —, 103 S.Ct. 347, 74 L.Ed.2d 387 (1982), provides a more fruitful analogy. In that case we upheld appellant’s conviction for conspiring to defraud the United States. The conspiracy involved an oil company, Mystic Fuel Corp., which fraudulently charged the government for fuel oil that was never delivered. We upheld the conviction despite the lack of direct evidence connecting the defendant to the conspiracy, because “there was sufficient evidence of Cineotta’s pervasive involvement in Mystic’s operations ... for a reasonable juror to infer that Cincotta knew of, profited from, and encouraged the conspiracy .... ” Id. at 241. In the present case there is no direct evidence of Gomes’s involvement in the distribution scheme, but “[pjarticipation in a criminal conspiracy need not be proved by direct evidence, a common purpose and plan may be inferred from a ‘development and a collocation of circumstances.’ ” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Gomes’s association with the other conspirators coupled with his knowing dominion over the packaged and merchantable illegal drugs (a relationship the others would have scarcely allowed had he been a mere outsider) presents sufficient circumstances to support a verdict of guilt beyond a reasonable doubt.

I would therefore affirm the conviction of Gomes.