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USCA1 Opinion
July 7, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2212
UNITED STATES,
Appellee,
v.
PHILLIP A. WIGHT,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, 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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Martin K. Glennon with whom Martin K. Glennon Professional
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Association was on brief for appellant.
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Peter E. Papps, First Assistant United States Attorney, with whom
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Jeffrey R. Howard, United States Attorney, was on brief for appellee.
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*Of the District of Puerto Rico, sitting by designation.
FUSTE, District Judge. After a jury trial, appellant
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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
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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
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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).
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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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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
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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
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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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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.
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307, 319 (1979); United States v. Abreu, 952 F.2d 1458, 1466 (1st
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Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 1695 (1992); United
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States v. Sabatino, 943 F.2d 94, 97 (1st Cir. 1991); United
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States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991);
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United States v. Ruiz, 905 F.2d 499, 502 (1st Cir. 1990) (same
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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-
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Paternina, 918 F.2d 979, 983 (1st Cir.), cert. denied, 111 S.Ct.
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1637 (1990), and cert. denied, 111 S.Ct. 2809 (1991). Also,
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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
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17; United States v. McDowell, 918 F.2d 1004, 1010 (1st Cir.
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1990); United States v. Boylan, 898 F.2d 230, 243 (1st Cir.),
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cert. denied, ___ U.S. ___, 111 S.Ct. 139 (1990).
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A. Section 924(c)(1)
A. Section 924(c)(1)
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18 U.S.C. 922(g)(1).
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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
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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
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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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section 924(c). See also United States v. Hadfield, 918 F.2d
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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);
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United States v. Payero, 888 F.2d 928, 929 (1st Cir. 1989)
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(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
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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
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States v. Young-Bey, 893 F.2d 178, 181 (8th Cir. 1990).
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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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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
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v. Powell, 469 U.S. 57 (1984), inconsistency is not a sufficient
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reason to set aside the verdict provided that sufficient evidence
supports the count of conviction. See also United States v.
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Bernal-Rojas, 933 F.2d 97, 100 (1st Cir. 1991); United States v.
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Bucuvalas, 909 F.2d 593 (1st Cir. 1990) (rationale of Powell
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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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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
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op. at 4 (1st Cir. April 21, 1992); United States v. Smith, 940
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F.2d 710, 713 (1st Cir. 1991); United States v. Rumney, 867 F.2d
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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
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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.
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Lochan, 674 F.2d 960, 966 (1st Cir. 1982). Possession can be
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either actual or constructive, sole or joint. United States v.
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Vargas, 945 F.2d 426, 428 (1st Cir. 1991); Batista-Polanco, 927
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F.2d at 19; United States v. Martinez, 922 F.2d 914, 923-24 (1st
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Cir. 1991); United States v. Latham, 874 F.2d 852, 861 (1st Cir.
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1989); United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st
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Cir.), cert. denied, 485 U.S. 1024 (1988). In order to show
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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,
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549 (1st Cir. 1989), cert. denied, 494 U.S. 1019 (1990); Vargas,
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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
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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
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18; Barnes, 890 F.2d at 549.
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While this court has upheld convictions for
violations of 18 U.S.C. 922(g)(1), United States v. Minnick,
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949 F.2d 8, 10 (1st Cir. 1991), cert. denied, ___ U.S. ___, 112
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S.Ct. 1698 (1992); United States v. Donlon, 909 F.2d 650, 655-56
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(1st Cir. 1990); United States v. Rumney, 867 F.2d 714, 719 (1st
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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
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3, 5-6 (1st Cir. 1983), we have not passed upon a conviction
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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).
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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
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5Constructive possession of a firearm has been discussed in First
Circuit cases in a different context. In United States v.
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Parent, 954 F.2d 23 (1st Cir. 1992), we vacated a judgment of
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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
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(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
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States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992)
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(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.
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___, (U.S. Apr. 30, 1992) (No. _____); United States v. Moreno,
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933 F.2d 362, 373 (6th Cir.), cert. denied, ___ U.S. ___, 112
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S.Ct. 265 (1991); United States v. Wainwright, 921 F.2d 833, 836
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(8th Cir. 1990); United States v. Sullivan, 919 F.2d 1403, 1430
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(10th Cir. 1990); United States v. Terry, 911 F.2d 272, 278 (9th
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Cir. 1990); United States v. Garrett, 903 F.2d 1105, 1110 (7th
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Cir.) ("[c]onstructive possession exists when a person does not
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have actual possession but instead knowingly has the power and
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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
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Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3761 (U.S. Jan.
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7, 1992) (No. 91-1593); United States v. Smith, 930 F.2d 1081,
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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
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the intention at a given time to exercise dominion and control
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over an object, either directly or through others") (emphasis in
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original), cert. denied, ___ U.S. ___, 111 S.Ct. 272 (1990).
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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
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discovery in vehicle and testimony that defendant "dipped his
shoulder" as police officer approached vehicle); United States v.
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Soto, 779 F.2d 558, 560 (9th Cir. 1986) ("[m]ere proximity of a
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weapon to a passenger in a car goes only to its accessibility,
not to the dominion or control"), cert. denied, 484 U.S. 833
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(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
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(10th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 428 (1991).
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Affirmed.
Affirmed
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Document Info
Docket Number： 91-2212
Filed Date： 7/7/1992
Precedential Status： Precedential
Modified Date： 3/3/2016