United States v. Benevides ( 1993 )

February 11, 1993
United States Court of Appeals
For the First Circuit
No. 92-1737
UNITED STATES,
Appellee,
v.
JOSEPH S. BENEVIDES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge, and
Stahl, Circuit Judge.
Randy Olen with whom John M. Cicilline was on brief for
appellant.
Margaret E. Curran, Assistant United States Attorney, with whom
Lawrence D. Gaynor, Assistant United States Attorney and Lincoln C.
Almond, United States Attorney, were on brief for appellee.
February 11, 1993
STAHL, Circuit Judge. At his jury trial, defendant
Joseph S. Benevides was convicted of conspiracy to transfer a
firearm illegally. On appeal, defendant challenges the
sufficiency of the evidence supporting his conviction.
Finding sufficient evidence to sustain the conviction, we
affirm.
I.
BACKGROUND
We summarize the evidence in a light most favorable
to the government. United States v. Nueva, 979 F.2d 880, 881
(1st Cir. 1992). Defendant was employed at Handy and Harmon
Jewelry Company ("Handy and Harmon") in East Providence,
Rhode Island. On May 15, 1991, Officer Genaro Ramirez of the
East Providence Police Department began undercover work as an
employee of Handy and Harmon. Although his original
assignment was to investigate complaints of gold theft from
the company, Ramirez began investigating other possible
criminal activity as well. As part of his investigation,
Ramirez told Yee Yang, another employee of Handy and Harmon,
that he was interested in purchasing a gun for his own
protection. Soon thereafter, defendant approached Ramirez at
work and told him that he had a friend who could supply
Ramirez with guns. Defendant mentioned specifically that his
friend had a "beautiful" sawed-off shotgun that defendant
himself had consideredpurchasing. Ramirezexpressed interest.
-2-
2
On June 27, 1991, defendant advised Ramirez that he
had made arrangements for Ramirez to meet his friend after
work. Ramirez was reluctant to meet defendant's friend that
day because he had advised neither his supervisors nor
federal officers from the Bureau of Alcohol, Tobacco and
Firearms of the meeting. Defendant was very persistent,
however, and for the sake of the investigation, Ramirez felt
he had no choice but to go. Defendant and Ramirez drove in
separate cars to a liquor store parking lot where defendant
had arranged to meet his friend, Hans Lunder ("Smitty").
Smitty, accompanied by his wife, arrived at the
parking lot in a black van. Defendant introduced Ramirez to
Smitty and his wife. After introductions, defendant asked
"Why don't you guys get to business[?]" In the presence of
defendant, Ramirez told Smitty that he had no money with him,
but that he was interested in purchasing the sawed-off
shotgun. In the course of the conversation, defendant asked
Smitty if Smitty had the shotgun with him. Smitty replied
that he did. Smitty mentioned that he could also provide
Ramirez with a .357 handgun, although he did not have it with
him.
Ramirez then asked to see the shotgun. Smitty
disappeared momentarily and returned. With defendant still
present, Smitty told Ramirez to proceed to a white car that
was parked about twenty-five feet away in the parking lot, to
-3-
3
get into the passenger side, and to "make it look cool
because of the cops."
Ramirez proceeded to the car alone, leaving
defendant with Smitty and his wife. Upon getting in the car,
Ramirez met William Dawson. Dawson showed Ramirez a sawed-
off shotgun, and assured him that it functioned. Dawson and
Ramirez agreed on a price of $200 for the gun. Ramirez told
Dawson that he had no money, but that when he was ready to
purchase the gun, he would let Dawson know through defendant.
Ramirez then returned without the gun to Smitty's
van. With defendant still present, Ramirez told Smitty that
he would let Smitty know, through defendant, when he had
enough money to buy the sawed-off shotgun.
Less than one month later, on July 22, 1991,
defendant approached Ramirez and asked him if he was still
interested in buying the sawed-off shotgun or the .357
handgun that Smitty had mentioned. When Ramirez replied in
the affirmative, defendant said that he would make the
necessary arrangements for the purchases by telephoning
Smitty.
Two days later, on July 24, defendant approached
Ramirez at work and told him that the deal had been set for
the following day. The next day, July 25, defendant advised
Ramirez that the deal was set for later that day, but that
-4-
4
defendant would have to contact Smitty to make sure of the
time and place of the meeting. That afternoon, defendant
approached Ramirez to tell him that he had spoken with Smitty
and that Smitty had arranged a meeting for that afternoon at
the same liquor store parking lot where the parties had
previously met. Defendant stated that he would not be
present because he had to buy parts for his truck. Defendant
said that Smitty would not be present either, but that Dawson
would arrive with both the shotgun and the .357 handgun.
Ramirez arrived alone at the parking lot at the
appointed time and found Dawson standing outside of a
minivan. Dawson told Ramirez that he had the sawed-off
shotgun which Ramirez had previously seen, and that another
person, located across the street from where Dawson and
Ramirez were standing, had the .357 handgun which Ramirez
could purchase.
Ramirez began haggling with Dawson about the price
of the shotgun. Dawson said that he could go no lower than
$170 because Smitty was getting $50 of the purchase price.
When asked whether defendant was receiving any portion of the
money, Dawson replied that he was not. Ramirez purchased the
gun from Dawson for $170.
After placing the shotgun in the trunk of his car,
Ramirez returned to Dawson's minivan and inquired about the
.357 handgun. Dawson directed Ramirez across the street,
-5-
5
where Ramirez met a man named "Bill" who showed him the .357
handgun. Ramirez and Bill negotiated a price of $450 for the
.357 handgun. Subsequently, Bill departed the scene, and
though Ramirez expected his return, Bill never reappeared.
Ramirez left without purchasing the handgun.
The following day at work, defendant asked Ramirez
if he had purchased a gun, and Ramirez replied that he had
purchased the shotgun. Five days later, on July 31, Ramirez
told defendant that he had sold the shotgun for a profit. On
August 1, Ramirez told defendant he was still interested in
the .357 handgun. From a telephone at work, defendant called
Smitty, and handed the phone to Ramirez. Smitty apologized
to Ramirez for the disappearance of Bill, and asked if
Ramirez was satisfied with his purchase of the shotgun.
On August 9, 1991, defendant again called Smitty
from work, and again handed the phone to Ramirez. Ramirez
asked about the .357 handgun, and Smitty told him that Bill
had gone to Florida, and that he could not get the handgun
until a later date. That day, defendant gave Smitty's phone
number to Ramirez.
On October 17, 1991, defendant was arrested. The
indictment against defendant charged him with conspiracy to
transfer a firearm in violation of 26 U.S.C. 5861(e)1,
1. 26 U.S.C. 5861(e) makes it unlawful for any person to
"transfer a firearm in violation of the provisions of this
chapter."
-6-
6
58112, and 5812(a)3 of the National Firearms Act ("the
Act"), all in violation of 18 U.S.C. 371.4
2. 26 U.S.C. 5811 provides in relevant part:
(a) Rate. There shall be levied, collected, and
Rate.
paid on firearms transferred a tax at the rate of
$200 for each firearm transferred . . . .
(b) By whom paid. The tax imposed by subsection
By whom paid.
(a) of this section shall be paid by the
transferor.
3. 26 U.S.C. 5812(a) provides:
A firearm shall not be transferred unless (1) the
transferor of the firearm has filed with the
Secretary [of the Treasury] a written application,
in duplicate, for the transfer and registration of
the firearm to the transferee on the application
form prescribed by the Secretary; (2) any tax
payable on the transfer is paid as evidenced by the
proper stamp affixed to the original application
form; (3) the transferee is identified in the
application form in such manner as the Secretary
may by regulations prescribe, except that, if such
person is an individual, the identification must
include his fingerprints and his photograph; (4)
the transferor of the firearm is identified in the
application form in such manner as the Secretary
may by regulations prescribe; (5) the firearm is
identified in the application form in such manner
as the Secretary may by regulations prescribe; and
(6) the application form shows that the Secretary
has approved the transfer and the registration of
the firearm to the transferee. Applications shall
be denied if the transfer, receipt, or possession
of the firearm would place the transferee in
violation of the law.
4. 18 U.S.C. 371 provides in relevant part:
If two or more persons conspire either to commit
any offense against the United States, or to
defraud the United States, or any agency thereof in
any manner or for any purpose, and one or more of
such persons do any act to effect the object of the
conspiracy, each shall be fined not more than
-7-
7
At trial, the government's evidence showed that the
gun which Ramirez purchased from Dawson was a firearm within
the meaning of 26 U.S.C. 5845(a)(2),5 that it was
unregistered, and that it was transferred without the
required application to transfer and without payment of the
required transfer tax.
II.
DISCUSSION
Defendant challenges the sufficiency of the
evidence supporting his conviction. More specifically,
defendant argues (1) that there was insufficient evidence
that he entered into an agreement to commit the unlawful
$10,000 or imprisoned not more than five years, or
both.
5. 26 U.S.C. 5845(a)(2) provides:
The term "firearm" means a weapon made from a
shotgun if such weapon as modified has an overall
length of less than 26 inches or a barrel or
barrels of less than 18 inches in length.
The weapon which was transferred was a modified shotgun with
an overall length of twenty one and one-half inches, and a
barrel length of twelve and one-half inches.
-8-
8
act,6 and (2) that he was indifferent to the outcome of the
conspiracy.
In reviewing a claim of insufficient evidence, we
view the evidence in the light most favorable to the verdict,
and determine whether a rational trier of fact could have
found guilt beyond a reasonable doubt. United States v.
Tejeda, 974 F.2d 210, 212 (1st Cir. 1992).
"The `essence' of conspiracy is an agreement to
commit a crime." United States v. Moran, No. 91-1772, slip
op. at 3 (1st Cir. Jan. 20, 1993) (emphasis in original).
Thus, a sustainable conspiracy conviction requires "proof
beyond a reasonable doubt that the conspirators intended to
agree and to commit whatever substantive criminal offense may
have been the object of their unlawful agreement." United
States v. Cruz, No. 91-1047, slip op. at 7 (1st Cir. Dec. 18,
1992). The unlawful agreement may be either express or
tacit. Tejeda, 974 F.2d at 212. Its existence may be proven
6. In that part of his brief which argues that there was
insufficient evidence of an agreement, defendant also asserts
that the government's evidence failed to show that he "had
the necessary intent to commit the substantive offense." To
the extent that this statement is an attempt to raise an
issue other than the sufficiency of the evidence, it is
plainly inadequate to warrant our review. We have repeatedly
warned parties that "issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino,
895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082(1990). Accordingly, we decline to engage in speculation or
to forge beyond the line of argument that defendant has
explicitly pursued in his appeal.
-9-
9
by direct or circumstantial evidence. Id. Moreover, the
government is not required to prove that the defendant knew
about, or took part in, all aspects of the conspiracy. Cruz,
slip op. at 8; United States v. Rivera-Santiago, 872 F.2d
1073, 1079 (1st Cir.), cert. denied, 492 U.S. 910, 493 U.S.
832 (1989). All that is required is that the government show
"`the essential nature of the plan and the [defendant's]
connection with it.'" Id. (quoting Blumenthal v. United
States, 332 U.S. 539, 557 (1947)). The record before us
discloses ample evidence to support defendant's conviction of
conspiring to transfer a firearm illegally.
The government's evidence showed that defendant
approached Ramirez and told him about a friend who could
supply guns, that defendant arranged the first meeting in the
parking lot, that he persisted in bringing Ramirez to the
first meeting, that he arrived at the first meeting and asked
Smitty whether Smitty had brought the shotgun, that he
remained in the parking lot with Smitty throughout the first
meeting, that he approached Ramirez about the second meeting,
that he arranged the second meeting when the gun was
transferred, and that he continued to phone Smitty after the
transfer. In our view, such evidence is more than sufficient
for a reasonable jury to have inferred an agreement between
-10-
10
Smitty and defendant to transfer the gun to Ramirez.7
Accordingly, we find defendant's sufficiency argument
unpersuasive.
7. In his motion to the district court for judgment of
acquittal, and again on appeal, defendant has relied on
United States v. Tyler, 758 F.2d 66, 69 (2d Cir. 1985), to
argue that he merely helped a willing buyer locate a willing
seller. As the district court properly noted in denying
defendant's motion, however, Tyler differs significantly from
the case before us.
In Tyler, the defendant met an undercover police officer
who expressed an interest in purchasing drugs. Defendant
Tyler then approached drug dealers in the street on behalf of
the officer. Eschewing the first dealer he met, Tyler
arranged for the officer to purchase heroin from a second
dealer. There was no evidence that Tyler knew either seller.
Finding that "[t]he evidence adduced by the government merely
shows that Tyler helped a willing buyer locate a willing
seller," id. at 69, the Second Circuit reversed Tyler's
conspiracy conviction, reasoning that "such evidence,
standing alone, is insufficient to establish the existence of
an agreement between [Tyler] and the seller." Id. (emphasis
supplied).
In the instant case, the government's evidence shows
that defendant approached Ramirez at work on several
occasions regarding the transfer, that he placed several
phone calls, arranged two meetings, and attended the first
meeting. Therefore, unlike the spontaneous sale in Tyler,
which provided no evidence of an agreement between Tyler and
the seller, the record before us presents ample evidence from
which the jury could have found an agreement between
defendant and Smitty to transfer the shotgun.
Defendant further argues that the district court, in
reaching its decision that Tyler did not apply, unduly relied
on the government's assertion that defendant "initiated"
discussions about the gun. Our review of the record,
however, shows that the district court did not limit itself
to evidence regarding the initiation of the sale. Instead,
the district court properly considered all of the evidence of
an agreement, including defendant's phone calls, his
arrangement of the meetings and his later conversations with
Ramirez about the transfer, when it denied defendant's motion
for judgment of acquittal based on Tyler.
-11-
11
Defendant's second argument suffers a similar fate.
A conspiracy conviction will not be sustained if the
government's evidence shows that a defendant "was indifferent
to the [conspiracy's] outcome altogether." United States v.
Aponte-Suarez, 905 F.2d 483, 491 (1st Cir. 1990), cert.
denied, 111 S. Ct. 531 (1990), 111 S. Ct. 975 (1991).
Instead, "[a]n accused must `in some sense promote [the
conspiracy] himself, make it his own, have a stake in its
outcome.'" Id. (quoting United States v. Falcone, 109 F.2d
579, 581 (2d Cir.), aff'd, 311 U.S. 205 (1940)). In the case
at bar, there was evidence that defendant approached Ramirez
on numerous occasions, planned meetings, persisted in
bringing them about, and asked about the transfer after it
occurred. Far from showing indifference, this evidence tends
to indicate that defendant actively promoted the transfer
which underlies his conviction. Accordingly, we reject
defendant's contention that a reasonable jury only could have
found that he was indifferent to the outcome of the
conspiracy.8
8. In arguing that he was indifferent to the conspiracy's
outcome, defendant relies almost exclusively on the fact that
he received no money for the transfer. However, a defendant
"may be guilty of participation in a criminal conspiracy
without actually profiting from or having any financial stake
in it." United States v. Alemany Rivera, 781 F.2d 229, 237
n.9 (1st Cir. 1985), cert. denied, 475 U.S. 1086 (1986). See
also Aponte-Suarez, 905 F.2d at 491. Simply put, in the face
of the aforementioned evidence, we do not find defendant's
lack of a financial stake in the sale of the shotgun to be a
sufficient basis for overturning the jury's verdict.
-12-
12
III.
CONCLUSION
For the foregoing reasons, defendant's conviction
is affirmed. Affirmed.
-13-
13