USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1370

UNITED STATES,

Appellee,

v.

FRANK NIEVES-BURGOS,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________

Boudin, Circuit Judge,

_____________

and Boyle,* Senior District Judge.

_____________________

_____________________

Juan R. Acevedo-Cruz,
______________________

by Appointment

of

the

Court, for

appellant.
John F. DePue, Attorney,
______________

Department of Justice,

with whom

Guillermo Gil, United States Attorney, Warren V zquez, Assistant

_____________
_______________

United States Attorney, and Nina Goodman, Attorney, Department of

____________
Justice, were on brief for appellee.

____________________

August 14, 1995

____________________
____________________

Of the District of Rhode Island, sitting by designation.

BOYLE, Senior District Judge.

BOYLE, Senior District Judge.
______________________

issues

This case

presents two

concerning the conviction of the appellant, Frank Nieves-

Burgos, for use of a firearm during a drug-trafficking offense in

violation

of

18

U.S.C.

924(c)(1).

Nieves-Burgos asserts,

first, that the

jury's general verdict of guilty

charge is ambiguous and must be set

on the firearm

aside, as it was returned on

a single charge containing three alleged violations, two of which

were not

Burgos

supported by

asserts

that

trial

the evidence at

the only

was

alleged

itself

not

trial.

Second, Nieves-

violation

supported

supported by

evidence

at

by

sufficient

evidence.

We conclude that the jury verdict is not ambiguous and

is adequately supported by the evidence, and we affirm.

I.
I.

BACKGROUND
BACKGROUND

The factual background of

this appeal is set forth

in

United States v. Torres-Maldonado, 14 F.3d 95, 98-100 (1st Cir.),

_____________
________________

cert. denied, 115 S.

____ ______

Ct. 193 (1994), an appeal taken

by Nieves-

Burgos'

which

co-defendants.

We therefore recount the relevant facts,

for the most part are not

is appropriate,

verdict.

See

we

do so

in the

disputed, only briefly, and, as

light most

favorable to

United States v. Torres-Maldonado, 14

_____________
________________

the

F.3d 95, 98

(1st Cir.), cert. denied, 115 S. Ct. 193 (1994).

____ ______

In

rented rooms

February

310, 311, and

Verde, Puerto Rico.

name.

1991,

Nieves-Burgos and

327 of the

Nieves-Burgos

several

Carib Inn Hotel

security personnel notified police

-2-

in Isla

rented room 311 using a false

The group occupied the rooms for several weeks.

6, 1991, hotel

others

On March

of suspicious

conduct in

the three rooms.

There had been frequent traffic to,

from, and between the rooms; the

hotel's

together,

three rooms received 90% of the

incoming telephone calls; the

in cash; and,

a hotel

rooms often were paid for

floor supervisor

observed two

handguns on a bureau in room 327.

Agents of the United States Bureau of Alcohol, Tobacco,

and Firearms

(ATF) began surveillance

At approximately 11:00

Burgos,

H ctor

of the hotel on

p.m. that evening, they

Santiago-Alicea, Teddy

March 6.

observed Nieves-

Le n-Ayala,

Oscar D az-

Cruz, and

an unidentified man

in the

hotel lobby.

The agents

observed Santiago-Alicea wearing a bullet-proof jacket, which was

bulging from something concealed underneath.

outside the

hotel to a

The group proceeded

parking lot, where the

unidentified man

produced a bag and handed it to Santiago-Alicea.

Later

that

same

evening,

another

unidentified

man

arrived at the hotel, and was met by Nieves-Burgos and Pedro Luis

Ram rez-Rivera

(Ram rez-Rivera).

After

a brief

conversation,

Nieves-Burgos and Ram rez-Rivera left the unidentified man.

returned

They

a short while later with Santiago-Alicea, who exchanged

packages with the unidentified man.

On March 7,

1991, ATF agents executed a search warrant

at the three hotel rooms.

Nieves-Burgos,

Marilyn

In room 311, they found

Gotay-Col n,

five persons:

Catalino Torres-Maldonado,

Ram rez-Rivera, and Santiago-Alicea.

Nieves-Burgos was on one of

the room's two beds, clad in his underwear.

revealed

A search of the room

quantities of cocaine, several bundles of cash, various

-3-

instruments

and supplies typically used for packaging cocaine, a

bullet-proof jacket, and a loaded Beretta semi-automatic handgun.

The gun was found with

a bundle of cash in

a zippered bag on

sofa on which Gotay-Col n was seated.

The bag was located

less

than two feet from Nieves-Burgos.

Rooms 310 and 327 were

that

were

in

the

hotel's

paraphernalia

were found in

the two cars.

In a green

revolver;

also

found were

also searched, as were two cars

parking

the two rooms.

More

picture

cocaine

and

Guns were found in

Ford LTD, agents found

a loaded .357

of Nieves-Burgos

and

Nieves-Burgos' fingerprint.

In

parking ticket

on which was

grey

nine-millimeter pistol

Buick, a

lot.

was found.

The Buick's

registration certificate was found in Santiago-Alicea's wallet.

Nieves-Burgos

and others were indicted.

and two of the indictment, Nieves-Burgos

with

In counts one

and others were charged

possessing with the intent to distribute, and conspiring to

possess

with the

intent to

distribute, cocaine.

Count

____________________

Count four provides in full:

On

or about

District of

March 7,

Puerto Rico

jurisdiction

of

this

NIEVES-BURGOS,
NIEVES-BURGOS,
RAMIREZ,
RAMIREZ,

RIVERA, PEDRO
RIVERA, PEDRO
known
known

as
as

known
known

the

and within

the

Court,

also
also

also
also

1991, in

known
known
as
as

FRANKIE
FRANKIE
as
as

JOSE
JOSE

HERRERAHERRERA-

LUIS RAMIREZ-RIVERA,
LUIS RAMIREZ-RIVERA,

PEDRO
PEDRO

TORRES-MALDONADO,
TORRES-MALDONADO,

KENNY
KENNY

also
also

MEDINA-RIVERA, CATALINO
MEDINA-RIVERA, CATALINO
MARILYN
MARILYN

GOTAY-COLON,
GOTAY-COLON,

HECTOR SANTIAGO-ALICEA, TEDDY LEON-AYALA,

HECTOR SANTIAGO-ALICEA, TEDDY LEON-AYALA,
and OSCAR DIAZ-CRUZ, also
and OSCAR DIAZ-CRUZ, also
SANTIAGO, the
SANTIAGO
and

known as OSCAR
known as OSCAR

defendants herein,

abetting each

other, did

and unlawfully use three

knowingly

(3) firearms of

the following descriptions:

-4-

aiding

four1

charged Nieves-Burgos and

use

of

three

firearms

trafficking crime

five others with the

during

in violation of

and

in

knowing unlawful

relation

18 U.S.C.

drug

924(c)(1).2

The

____________________

(a)

Beretta

semi-automatic

pistol

caliber 9mm., Model 92-F, black in color,

serial

number

BER042822Z

loaded

with

ammunition of its own [sic];

(b)
caliber

Smith

and

.357 magnum;

and one half (3 1/2)

Wesson

Revolver,

Model 27-2,

three

inch barrel, nickel

to

plated in

color with brown

grip, serial

number N109155; loaded with ammunition of

its own caliber;
(c)

Norinco

semi-automatic

pistol,

caliber 9mm., Model L213, black in color,

serial

number

315202,

loaded

with

ammunition of its own caliber; during and

in

relation

to

the

offense punishable
Prevention and
violation
Code,

of

18,

Title

II

Substance

Narcotic

cocaine, as

aiding

the

and

approximately

involving the
Controlled

defined in
Code,

Title
Section

States,

intent to
nine

States

may be prosecuted
United

an

that is,

United

abetting each

possession with

of

Drug Abuse

Drug

States

924(c)(1), which
of

21,

841(a)(1),

United

Court

under the

Control Act,

Section

Schedule

commission

to

other

in a
wit:
in the

distribute of

hundred

fifty-six

point one (956.1) grams (gross weight) of

cocaine,

Schedule

II

Narcotic

Drug

Controlled Substance; all in violation of

Title

18,

United States

Code,

924(c)(1).

18 U.S.C.

924(c)(1) provides in part:

Section

Whoever,
crime

of

during and

in relation

violence or

crime (including

to any

drug

trafficking

a crime of

violence or

drug trafficking crime which provides for

an

enhanced punishment

the use of

a deadly or

if committed

by

dangerous weapon

or device) 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

-5-

firearms alleged

in count four to have been used in violation of

924(c)(1) are the three handguns found in room 311 of the hotel

and the two cars searched in the hotel parking lot.

Evidence

of the three firearms was presented at trial.

At the close of the evidence, the trial judge instructed the jury

without

objection

and

presented

indictment for their deliberation.

them

with

copy

of

the

As to Nieves-Burgos, the jury

returned general verdicts of guilty on counts one, two, and four.

Nieves-Burgos took no appeal from the guilty verdict or

his sentence.

Upon his imprisonment, he filed a motion to vacate

his

under

sentence

assistance

U.S.C.

of counsel.

afforded new

sentenced

28

counsel for

to sixty months'

His

2255,

claiming

ineffective

motion was

granted,

and he

resentencing.

On

count four,

imprisonment, to run

was

he was

consecutive to

his sentences on the other two counts.

Nieves-Burgos now

four.

his

appeals the guilty verdict

He asserts that the evidence was not sufficient to support

conviction as

to any

of the

States argues in response that

in

on count

room 311

was

sufficient

government expressly declines

either

of

the

two

firearms

three firearms.

The United

the evidence of the firearm found

to support

the

to argue that

found

in

conviction.

The

evidence concerning

the

automobiles

was

to support the conviction.3

During argument,
violence or drug trafficking crime, be

the

____________________

sufficient

sentenced to imprisonment

for five years

. . . .

In its brief, the government states:

argue that Nieves-Burgos' conviction

"The government does not

under Section 924(c)(1)

is

supported by [evidence of] the two guns found during the searches
of the cars."

Government's Brief at 7 n.5.

-6-

parties were asked

to submit supplemental briefs

concerning the

issue whether the general verdict of guilty should stand where it

was returned on

a count containing

three alleged violations

of

the firearms statute, two of which concededly were unsupported by

evidence at

trial.

The parties'

considered.

We address the issues.

II.
II.

arguments

ANALYSIS
ANALYSIS

were received

and

A.
A.

The General Verdict

The General Verdict
___________________

Nieves-Burgos initially argues that

violation of

18 U.S.C.

general verdict of

18 U.S.C.

sufficient to

The

government

support a

concedes

count

and the

conviction as to

that the

as to two of

four, but argues

evidence at

two of

evidence

at

the jury's

it was returned

the use of three firearms

924(c)(1),

support a conviction

stand as

guilty was ambiguous in that

on a charge that alleged

of

924(c)(1) cannot

his conviction for

in violation

trial was

not

the firearms.

trial did

not

the three firearms listed

that the verdict

should stand as

in

it is

supported by sufficient evidence as to the remaining firearm.

This issue

was

effectively determined

in Griffin
_______

v.

United States, 502 U.S. 46 (1991).

_____________

been convicted by jury of

18 U.S.C.

(1991).

371.

Internal

efforts

an unlawful conspiracy in violation of

See Griffin v. United States,

___ _______
_____________

single

conspiracy had two

In Griffin, the appellant had

_______

count

in the

indictment

unlawful objects:

impeding

502 U.S. 46, 47

charged that

the

efforts of

the

Revenue Service to ascertain income taxes; and impeding

of

the

Drug

Enforcement

-7-

Administration to

ascertain

forfeitable income.

failed to

verdict,

verdict

appellant to

verdict of

of guilty

the verdict

any of

the

at trial

respect to

the

The trial court's instructions

a guilty verdict

See id. at 48.

___ __

rule that

on

guilt with

have participated in

guilty.

citing the

criminal act,

supports

evidence presented

them to return

objects of the conspiracy.

general

The

See id. at 47-48.

___ __

jury permitted

found the

id.
__

establish the appellant's

second object.

to the

See
___

either of

The jury

See id.
___ __

The

Court

when

a jury

charging

stands if

the evidence

acts charged.

See
___

id. at
__

the two

returned a

affirmed the

returns a

single count

if they

general

more than

one

sufficiently

56-57 (citing

Turner v. United States, 396 U.S. 398, 420 (1970)).

______
_____________

Griffin provides
_______

of the law.

somewhat

what was a

Prior to Griffin, Supreme

_______

disjointed, if

not downright

much-needed clarification

Court authority appeared

contradictory.

Compare
_______

Turner v. United States, 396 U.S. at

______
______________

420 ("The general rule

that

verdict

when a

jury

returns

a guilty

on an

is

indictment

charging several acts in the conjunctive . . . the verdict stands

if the evidence is sufficient with respect to any one of the acts

charged.")

with
____

Yates
_____

(1957)("[W]e think

v.

United States,
______________

U.S. 298,

312

to be applied is

that which

requires a verdict to be set aside in cases where the

verdict is

supportable

on

one

the proper rule

354

ground,

but

not on

another,

and

it

is

impossible

to

tell

Griffin, the Court

_______

which

ground

the jury

articulated subtle

lines of relevant cases, seeking

selected.").

distinctions between

to reconcile them.

In

the

See Griffin
___ _______

-8-

v. United States, 502 U.S.

_____________

to

discuss the

Supreme

at 52-56.

It is

Court's analysis

appropriate briefly

in Griffin
_______

before we

address the issue as it relates to this case.

In

Griffin, the
_______

general rule:

Court

"a general jury

[is] legally supportable on one

discussed the

long-recognized

verdict [is] valid so long as

it

of the submitted grounds -- even

though [this gives] no assurance that a valid ground, rather than

an invalid

Id.
__

at 49.

settled

law

one, was actually

The

Court acknowledged that

throughout

Indeed, the rule

the basis for the

this

country's

Declaration of

Independence:

count

support

verdict,

the

notwithstanding all the rest are bad."

275, 276, 98

this doctrine has been

existence.

was declared by Lord Mansfield

before the

to

jury's action."

it

"if

See
___

id.
__

at King's Bench

there is

shall

stand

any one

good,

Peake v. Oldham, 1 Cowper

_____
______

Eng.Rep. 1083, 1084 (K.B. 1775),

quoted in Claasen

______ __ _______

v. United States, 142 U.S. 140, 146

_____________

United States, 502

_____________

U.S. at 49-50.

more recently followed in Turner

______

420 (1970).

In Turner,
______

single

with

count

The

rule, Griffin notes, was

_______

v. United States, 396 U.S. 398,

_____________

the appellant

knowingly

dispensing and distributing

(1891), quoted in Griffin v.

______ __ _______

not

only

had been

charged in

purchasing,

heroin in violation of

and the jury returned a general verdict of guilty

Turner v. United States, 396 U.S. at 419-20.

______
_____________

but

also

Federal law,

on the charge.

The Court concluded

that, because the evidence at trial was sufficient to support the

contention that the appellant had distributed heroin in violation

of the relevant statute, the verdict should be upheld, whether or

-9-

not the evidence was sufficient

allegations in the count.

See
___

to support the other conjunctive

id. at 420-21.
__

The Court

on what it labeled the "general rule" on the issue:

returns a guilty verdict on

in the conjunctive

. . . the

"when a jury

an indictment charging several

verdict stands if the

sufficient with respect to any one of

relied

acts

evidence is

the acts charged."

Id. at
__

420, quoted in Griffin v. United States, 502 U.S. at 56-57.

______ __ _______
_____________

also Turner v. United States, 396

____ ______
_____________

U.S. at 420 & n.42, and

See
___

cases

cited.

The

primary exception

to

the

general rule,

recognizes, finds its roots in Stromberg v. California,

_________
__________

359

(1931).

See Griffin v.
___ _______

United States, 502 U.S.

_____________

Griffin
_______

283 U.S.

at 52.

In

Stromberg, the appellant had been charged in a single count of an

_________

information of

display of a

violating a

red flag for

California

any of three

statute prohibiting

purposes:

"as

a sign,

symbol or emblem

of opposition to organized government[;]

an invitation or

stimulus to anarchistic action[;] or

to propaganda

that is of

a seditious character."

the

or as

as an aid

Stromberg v.
_________

California, 283
__________

U.S. 359,

Court determined

violates

361 (1931)

that the first

the Fourteenth

(citation omitted).

of the statute's

Amendment.

See id.
___ __

three clauses

at

setting aside the

jury's general verdict, it stated:

of

in

the

clauses

Constitution,

the

question

is

conviction cannot

invalid

under

be upheld."

369-70.

thereafter

was

applied

-10-

in

many

In

"[I]f any

the

Federal

Id.
__

at 368,

quoted in Griffin v. United States, 502 U.S. at 53.

______ __ _______
_____________

Stromberg
_________

The

cases

The rule of

involving

"general-verdict

convictions

unconstitutional ground."

that

may

have

rested

on

an

See Griffin v. United States, 502 U.S.

___ _______
_____________

at 55, and cases cited.

In

Yates v. United States, 354

_____
______________

Court extended

some

the rule of

confusion.

appellants

violating a

purposes:

on

U.S. 298

(1957), the

Stromberg, and in doing

_________

so, created

Yates concerns
_____

single-count

California statute

(1)

advocating

the

convictions

indictment

charging

by conspiring

the

violent

of numerous

for two

overthrow

them

with

unlawful

of

the

government; and (2) organizing the

States.

See Yates v. United States, 354 U.S. at 300.

___ _____
_____________

determined that

the "organizing"

relevant statute

of limitations.

held:

Communist Party of the United

"In

charge was

See
___

these circumstances we

The

Court

prohibited by

id. at
__

312.

think the proper

the

The Court

rule to

be

applied is that which requires a verdict to be set aside in cases

where

the verdict

another,

selected."

and it

is

supportable

is impossible

to

on one

ground,

tell which

but not

ground the

on

jury

Id. (citing Stromberg v. California, 283 U.S. at 367__

_________
__________

68; Williams v. North Carolina,

________
______________

317 U.S. 287, 292 (1942); Cramer

______

v. United States, 325 U.S. 1, 36 n.45 (1945)).

_____________

As the Court acknowledged in Griffin, Yates constitutes

_______ _____

a novel and unexplained extension of the Stromberg rule:

_________

Yates . . .
_____

was the first and only

of ours

to apply Stromberg to
_________

verdict

in

bases of

which

one of

conviction did not

-11-

case

a general

the

possible

violate any

provision

of

the Constitution

simply legally

statutory

described,

extension,

the

Due

unlikely

but

inadequate (because

time

bar).

that

As

was

explicitly

an

Clause

basis)

nor

our

of a

we

have

unexplained

invoking

Process

was

(which

neither

is

an

supervisory

powers over the procedures employed in

federal prosecution.

Griffin v. United States, 502 U.S.

_______
_____________

none of the

at 55-56.

Griffin notes that

_______

three cases cited in Yates to support its holding -_____

Stromberg and two of its progeny, Williams v. North Carolina, 317

_________
________
______________

U.S. 287, 292 (1942), and Cramer v. United States, 325 U.S. 1, 36
______
_____________

n.45

(1945)

-- in

fact

supports it.

See Griffin
___ _______

v. United
______

States, 502 U.S. at 52, 54-55.

______

Griffin clarifies
_______

only to cases in

which one of

was legally erroneous.

cases,

like

Turner,
______

rested

on a basis that

those concerning

ground as

Yates by explaining that

_____

See
___

the possible bases of

id. at 51-52.
__

which concern

a result of an

possibly

that

on

one

sense

inadequacy

"legal

of evidence

error"

an

invalid

See id. at 58-59.

___ __

explains:

In

may have

by the evidence, from

resting

error of law.

conviction

Griffin distinguishes
_______

convictions

was not supported

convictions

it extends

includes

-- namely,

when

It

the phrase

is used as

a term of

art to

mistakes that it

is the

-12-

designate those

business of judges (in jury cases) and of

appellate courts to identify and correct.

In this sense "legal error" occurs when a

jury, properly instructed as to the

law,

convicts on the basis of evidence that no

reasonable

person

sufficient.

But in
___ __

could

regard

as

another sense -_______ _____

more natural and less artful sense -- the

___

term "legal error"

____ ______ ______

the
___

law,
___

concerning
__________

import
______

means a mistake about

_____ _ _______ _____

as
__

opposed
_______

the
___

weight
______

of the evidence.
__ ___ ________

to
__

or
__

a
_

mistake
_______

the
___

factual
_______

. . .

[W]e are

using "legal error" in the latter sense.

Id. at 59 (emphasis added).

__

Here,

Nieves-Burgos

asserts,

and

the

government

concedes, that there was insufficient evidence presented at trial

to support

the firearms

three guns

listed in the charge, that is,

the

Turner and Griffin tell us quite clearly that Nieves______

_______

cars.

Burgos'

verdict shall

Rather,

the verdict

supported

by the

therefore

must

conviction with respect

not be

set

must stand

evidence

determine

concerning the

whether

the

this basis

as it

-13-

alone.

is sufficiently

third

evidence

supports Nieves-Burgos' conviction under 18 U.S.C.

to the firearm found in room 311.

of the

the two guns found in

aside on

so long

to two

firearm.

We

sufficiently

924(c)(1) as

Before we move on, however, we acknowledge that, before

Griffin, Yates appeared to set forth a rule that differed, if not

_______ _____

conflicted,

Turner.
______

with the

in

proposition that a general verdict

returned on a

asserting numerous grounds for conviction must be vacated

where one or

the

rule recognized

Prior to Griffin, we cited authority relying on Yates in

_______
_____

support of the

charge

long-standing general

more of the grounds is

evidence and it

insufficient ground.

insufficiently supported by

is unclear whether

the jury

relied on the

See United States v. Moynagh, 566 F.2d 799,

_____________
_______

804 (1st

Cir. 1977), cert.

____

denied, 435 U.S. 917

______

(1978) (citing

United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975), cert.
_____________
_______
____

denied, 425 U.S.

______

U.S.

298))

counts

934 (1976) (citing Yates v.

_____

("We

cannot

specification

conclude that

be

sustained

charging

Moynagh's

because

concealment .

introduced which supports

United States, 354

_____________

conviction

each

. .

count

and no

on these

contains

evidence was

any fraudulent concealment . .

. .").

Griffin renders this proposition unsound.4

_______

We

note

that

this

circumstances, be avoided:

support

generally

an alternative

be preferable

type

of

issue

may,

in

proper

"[I]f the evidence is insufficient to

legal

theory

for the

of

court to

liability,

give

it

would

an instruction

removing that theory from the jury's consideration."

Griffin v.

_______

____________________

We

have on

Griffin's
_______
Ochs,
____

842

numerous occasions

interpretation of
F.2d 515,

Kavazanjian, 623 F.2d

___________

520

it.
(1st

cited Yates
_____
See,
___

Cir.

in accord

with

e.g., United States v.

____ ______________
1988); United States
______________

v.

730, 739-40 (1st Cir. 1980); United States

_____________

v. Driscoll, 449 F.2d 894, 898 (1st Cir. 1971), cert. denied, 405
________
____ ______
U.S. 920 (1972).

-14-

United States,
_____________

the

bell,"

conviction,

proffer

502 U.S. at 60.

however,

the trial

of the evidence

when

there

court may

each

of the

alternative

be well

Also, the

alternative pleading

might require

are

linking a

particular alternative.

avoiding

Aside from attempting to "unring

bases

advised to

require a

particular defendant

government should

altogether,

alternatives

or the

to be

for

with a

consider

trial

court

considered

and

proved separately.

B.
B.

Sufficiency of the Evidence

Sufficiency of the Evidence
___________________________

Nieves-Burgos argues that the evidence at trial was not

sufficient to support his conviction on count four

of 18 U.S.C.

1.

for violation

924(c)(1) as to the firearm found in room 311.

Standard of Review

1.

Standard of Review

In reviewing challenges to the sufficiency of evidence,

"[o]ur

task is

evidence

to review

the record

and reasonable inferences

to determine

whether the

therefrom, taken as

a whole

and in the light most favorable to the prosecution, would allow a

rational

jury to

defendants

Robles,
______

Rivera v.
______

resolve

were guilty

as

reasonable doubt

charged."

that the

United States v.
______________

Mena_____

4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied sub nom.
____ ______ ___ ___

United States, 114 S.

_____________

all credibility

United States
______________

omitted).

determine beyond a

v.

Ct. 1550 (1994).

issues in

favor of

Torres-Maldonado, 14
________________

F.3d

We therefore

the verdict.

at

See
___

100 (citation

We acknowledge that a jury's determination need not be

grounded in direct

evidence;

rather

it may be based

wholly on

circumstantial

evidence.

See id.
___ __

In

addition, the

evidence

-15-

"'need not exclude every reasonable hypothesis of innocence; that

is, the factfinder may decide among reasonable interpretations of

the evidence.'"

Id. (quoting United States v.

__
_____________

1006, 1011 (1st

Cir. 1993) (citation omitted)).

Cassiere, 4 F.3d
________

The court must

satisfy

itself "that

the

guilty verdict

plausible rendition of the record.'"

982

F.2d 675,

Ortiz,
_____

677 (1st

966 F.2d 707,

Cir.

finds

support in

'a

United States v. Echeverri,

_____________
_________

1993) (quoting

711 (1st Cir. 1992),

United States
_____________

v.

cert. denied, 113 S.

_____ ______

Ct. 1005 (1993)).

2.
2.

Analysis
Analysis

Section 924(c)(1), 18 U.S.C., makes

of

a firearm

"during

trafficking crime.

this section

term

of at

and

in relation

18 U.S.C.

to"

924(c)(1).5

unlawful the "use"

any Federal

drug-

A conviction under

results in a mandatory sentence of imprisonment for

least five

convicted of using

years.

See
___

the firearm found in

id.
__

Nieves-Burgos was

room 311 during and

in

relation to the crime of possessing with the intent to distribute

the controlled substance cocaine.

We

appellant's

examine

593 (1991))

government

in the

determine,

firearm

first,

at issue,

65, 71 (D.C. Cir.),

("in order to

establish that

firearm

for

purposes

of

must

prove

that

the

____________________

to

see
___

Torres-Maldonado, 14 F.3d at 102 (citing United

________________
______

Harrison, 931 F.2d

________

502 U.S.

'used'

evidence

possessory interest

United States v.
_____________

States v.
______

the

See supra note 2.

_____

-16-

section

defendant

cert. denied,
____ ______

a defendant

924(c)(1),

actually

'the

or

constructively possessed it'"), and, second, whether there exists

"some

facilitative nexus

activity."

between the

United States v.
_____________

Cir. 1992), cert.

____

weapon

and the

criminal

Castro-Lara, 970 F.2d 976, 983 (1st

___________

denied sub nom. Sarraff v.

______ ___ ___ _______

United States, 113

_____________

S. Ct. 2935 (1993).

a.
a.

Possession
Possession
__________

Nieves-Burgos is alleged

to have been

possession of the gun found in room 311.

in constructive

Constructive possession

exists

when a person "knowingly has the power and intention at a

given time

to exercise

either directly

dominion and

or through others."

control over

[a firearm],

United States v.
______________

Torres_______

Maldonado, 14 F.3d at 102.

_________

The evidence indicates, though not overwhelmingly, that

Nieves-Burgos was in constructive possession of the firearm found

in

room

following

311.

facts:

The

evidence supports

the

existence

of

the

Nieves-Burgos rented and occupied room 311; he

was a direct participant in the drug distribution scheme; the gun

was found in a zippered bag, also containing $2,000 in cash, on a

couch in room 311; Nieves-Burgos was less than

gun.

two feet from the

Nieves-Burgos concedes in his brief that he "clearly was in

control of Room

311."

A jury reasonably could

infer from these

facts that

the cash found in the bag

that contained the gun was

drug trafficking proceeds, and that Nieves-Burgos, a principal in

the drug trafficking scheme who

room, had

concededly was in control of the

knowledge of what was in the

bag, and, because of his

-17-

proximity to

the gun,

had the power

and intention

to exercise

dominion over it.

Clearly,

there is evidence

against this conclusion:

bag

directly to

zippered;

several

in the record

no witness could

Nieves-Burgos; the

several

co-defendants

have been closer

link the gun

bag concealing the

were

found

feet of the gun, and Gotay-Col n,

couch, may

that weighs

sitting

or the

gun was

within

who was seated on the

to the gun than

was Nieves-Burgos.

Nonetheless, our role is not to weigh the evidence; we are merely

to ensure that

jury's

some evidence exists to

determination.

at 1031.

Burgos was

support sufficiently the

See United States

___ _____________

v. Mena-Robles, 4 F.3d
___________

Again, the evidence supports the inference that Nieves-

in constructive possession

that he "clearly

of the gun:

He concedes

was in control of Room 311"; he was a principal

with respect to the underlying offense

of possession with intent

to distribute; and, he was found near -- less than two

feet from

-- the gun.

This

result

is consistent

with

Torres-Maldonado, in
________________

which we concluded that the evidence at trial was insufficient to

establish that

in constructive

United States
______________

considered to

appellants Torres-Maldonado and

possession of the

v.

Torres-Maldonado,
________________

14

F.3d

in room 311.

See
___

at 102-03.

We

be significant the absence of evidence that either

appellant was involved in the drug

the

gun found

Gotay-Col n were

evidence against

the other

distribution scheme:

defendants .

. .

against Torres-Maldonado and Gotay-Col n failed to

"Unlike

the evidence

establish any

-18-

connection between these

two defendants, on one

hand, and those

drug distribution transactions which appeared to involve guns, on

the other."

Id. at 102.
__

Nieves-Burgos was a

Again, the

direct participant in the

scheme.

b.
b.

evidence here shows

Facilitative Nexus
Facilitative Nexus
__________________

that

drug distribution

Use, as that term applies in

924(c)(1), requires more

than mere possession of a firearm, but does not require outwardly

apparent

utilization:

displayed or

"[the] weapon

discharged."

need

United States
_____________

not be

v. Reyes-Mercado,
_____________

F.3d 363, 367 (1st Cir. 1994) (citations omitted).

conviction under

this section

brandished,

for the use

of a

22

To sustain a

firearm, there

must be shown "some facilitative nexus between the weapon and the

criminal activity."

We

Id. (citations omitted).

__

have stated that,

actual possession

by the

"'the government need

defendant, only that

not prove

the firearm

was

readily accessible for the defendant's use' and that '[p]lacing a

weapon

nearby to

definition of

protect

drug

"used"' for purposes

operation comes

within

of section 924(c)."

the

United
______

States
______

v. Wight,
_____

United States
_____________

968 F.2d

v. Abreu,
_____

1393, 1396

952 F.2d 1458,

denied, 502 U.S. 994 (1992)).

______

carrying

a gun

on his person,

(1st Cir.

1466 (1st

"[W]here a drug

but has one

1992) (citing

Cir.), cert.
____

trafficker is not

nearby, the court's

critical concern is not whether the gun was 'instantly available'

or 'exclusively dedicated to the narcotics trade,' but whether it

was 'available for use' in

connection with the narcotics trade."

-19-

United States v. Castro-Lara, 970 F.2d at 983.

_____________
___________

we examine in determining whether a

Among the factors

gun was available for use in

connection with a drug operation are the proximity of the

gun to

the drugs and

gun to

drug proceeds and the

the defendant.

26

(1st

See, e.g., United States

___ ____ _____________

Cir. 1994)

revolver

were

availability of the

("Drugs, drug

located

[Appellant]

had

an

significant

degree

in

close

apparent

of control

v. Paulino, 13 F.3d 20,

_______

paraphernalia, and

a loaded

proximity

another.

possessory

over,

to

one

interest

the premises.

in,

and

On these

facts, a reasonable factfinder certainly could find the requisite

facilitative nexus .

. . ."); United States

_____________

v. Castro-Lara, 970
___________

F.2d at

983 ("Appellant was apprehended in his car, at the scene

of a drug pickup, with the gun inside the car's trunk. . . . [W]e

believe a rational jury was free to conclude that the location of

the firearm --

near a large sum

of cash, in close

live ammunition, and at a place where

proximity to

drugs were to be delivered

-- coupled with the timing -- [appellant] brought the gun to

airstrip in the

course of taking delivery of

the

a sizable quantity

of cocaine -- supported a finding that the firearm was 'available

for use' during and in relation to the drug trafficking crime.").

There was testimony at trial

that the gun was found in

room 311 in a zippered bag less than two feet from Nieves-Burgos,

and

that also

cocaine,

found

in

bundles of cash,

the room

were

several quantities

and various instruments

of

and supplies

typically

utilized

for

packaging cocaine.

This

evidence is

sufficient to support a finding that the gun in room 311 was used

-20-

by

Nieves-Burgos

possession.

against

to

protect

the

drugs of

which

he

was

in

Although there is evidence in the record that weighs

this conclusion, the

the evidence and drew the

jury presumably considered

all of

permissible inference that the gun was

used by

Nieves-Burgos during and

with intent to distribute

See United States

___ _____________

1991)

("the

in relation to

his possession

cocaine, in violation of

924(c)(1).

v. Batista-Polanco, 927 F.2d 14,

_______________

17 (1st Cir.

factfinder

may

decide

among

reasonable

interpretations of the evidence").

CONCLUSION
CONCLUSION

Nieves-Burgos' conviction is

the

evidence

and stands

affirmed.

Affirmed.
Affirmed.
________

without

supported sufficiently by

error.

The

conviction

is

-21-