DocketNumber： 91-2301
Filed Date： 6/2/1992
Status： Precedential
Modified Date： 9/21/2015
June 2, 1992
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No. 91-2301
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD J. PLUMMER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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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
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brief for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
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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
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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
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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.
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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."
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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
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States v. Torres-Medina, 935 F.2d 1047, 1048-49 (9th Cir.
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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
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States v. Eaton, 890 F.2d 511, 512 (1st Cir.), cert. denied,
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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
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v. Payero, 888 F.2d 928, 929 (1st Cir. 1989).
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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,
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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
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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.
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Payero, this court stated that "a conviction will be
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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,
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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."
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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
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v. Rosado, 866 F.2d 967, 970 (7th Cir.), cert. denied, 493
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U.S. 837 (1989); Payero, 888 F.2d at 929. While the facts
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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
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"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
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22, 26 (1st Cir.), cert. denied, 111 S. Ct. 2813 (1991).
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Moreover, "assessing the credibility of witnesses is solely
the province of the trier of fact." United States v. Green,
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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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United States v. Johnny Rafael Batista-Polanco , 927 F.2d 14 ( 1991 )
united-states-v-emiro-miguel-passos-paternina-united-states-of-america-v , 918 F.2d 979 ( 1990 )
United States v. Dalton Green , 887 F.2d 25 ( 1989 )
United States v. Luis Rosado and Carmelo Sanchez , 866 F.2d 967 ( 1989 )
United States v. Cosme Torres-Medina , 935 F.2d 1047 ( 1991 )
United States v. Terry Wayne Hilton, A/K/A Bill Raymond ... , 894 F.2d 485 ( 1990 )
United States v. Eduardo Payero , 888 F.2d 928 ( 1989 )