UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1016
UNITED STATES,
Appellee,
v.
FELIPE RAMIREZ-FERRER,
Defendant - Appellant.
No. 94-1017
UNITED STATES,
Appellee,
v.
JORGE L. SUAREZ-MAYA,
Defendant - Appellant.
No. 94-1018
UNITED STATES,
Appellee,
v.
PAUL TROCHE-MATOS,
Defendant - Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Roxana Matienzo-Carri n, by Appointment of the Court, for
appellant Felipe Ram rez-Ferrer.
Ram n Garc a-Garc a for appellant Jorge L. Su rez-Maya.
Francisco Serrano-Walker for appellant Ra l Troche-Matos.
Kathleen A. Felton, Attorney, Department of Justice, with
whom Guillermo Gil, United States Attorney, Jos A. Quiles-
Espinosa, Senior Litigation Counsel, and Epifanio Morales-Cruz,
Assistant United States Attorney, were on supplemental brief for
appellee.
April 29, 1996
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TORRUELLA, Chief Judge. Defendants-appellants
TORRUELLA, Chief Judge.
(collectively, "defendants") Felipe Ram rez-Ferrer ("Ram rez-
Ferrer"), Jorge L. Su rez-Maya ("Su rez-Maya"), and Ra l Troche-
Matos ("Troche-Matos") appeal their firearm convictions under 18
U.S.C. 924(c)(1). A previous panel of this court affirmed the
convictions of Ram rez-Ferrer and Su rez-Maya for using a firearm
in relation to a drug trafficking offense, but reversed a
corresponding conviction of Troche-Matos. However, the original
panel's opinion was withdrawn when the government's petition for
an en banc was granted. The government has decided not to
contest the original panel's reversal of Troche-Matos'
conviction. As a result, we reiterate that holding; our focus is
on the appeals of Ram rez-Ferrer and Su rez-Maya.
Although the firearm convictions were also to be
reconsidered en banc, after the en banc oral argument was heard
but before the en banc opinion was issued, the Supreme Court
rendered its opinion in Bailey v. United States, U.S. ,
, 116 S. Ct. 501, 505 (1995), clarifying the meaning of
section 924(c)(1). In light of Bailey, the en banc court
remanded the firearm convictions for the panel's consideration.
We today affirm the convictions of Ram rez-Ferrer and Su rez-
Maya.
I. BACKGROUND
I. BACKGROUND
The evidence, taken in the light most favorable to the
government, United States v. Abreu, 952 F.2d 1458, 1460 (1st
Cir.), cert. denied, 503 U.S. 994 (1992), permitted the jury to
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find the facts that follow. Because the en banc decision
affirmed related drug possession convictions and reversed drug
importation convictions for all three defendants, the sole
remaining issue is the validity of the firearm convictions for
using or carrying a firearm during and in relation to a drug
trafficking crime pursuant to section 924(c)(1). Thus, we
emphasize the facts pertinent to the firearms charge.
On March 13, 1993, the Police of Puerto Rico ("POPR")
received an anonymous telephone call. The caller informed the
POPR that defendant Su rez-Maya and three other individuals
planned to bring a load of cocaine by boat to the main island of
Puerto Rico. Using a helicopter, the United States Customs
Service (USCS) and POPR located the subject boat and Su rez-Maya,
accompanied by three other men as described. The boat was
interdicted about one mile off the southwest coast of Puerto
Rico.
After the boat was seized, it was found to be carrying
about 16 kilograms of cocaine. A subsequent inventory search of
the boat turned up a firearm. The seized firearm, a loaded
revolver, was found covered by a T-shirt, behind a storage
compartment near the location where Ram rez-Ferrer had been
seated at the time of the interdiction. The search also revealed
evidence linking the vessel to a relative of Su rez-Maya.
On March 31, 1993, a grand jury indicted defendants on
charges of possessing and carrying a firearm in relation to a
drug trafficking crime (count 3), 18 U.S.C. 924(c)(1) (1994).
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On September 28, 1993, a jury convicted all three defendants on
this count. On count 1, later upheld by the en banc court,
relating to possession and importation of cocaine, Su rez-Maya
was sentenced to life imprisonment, Ram rez-Ferrer to a term of
240 months, and Troche-Matos to a term of 120 months.1 The
sentences of Su rez-Maya and Ram rez-Ferrer were enhanced under
21 U.S.C. 841(b) and 960(b) on account of prior drug crimes.
On count 3, the firearm count, each appellant was sentenced to a
mandatory minimum term of 60 months to be served consecutively,
as required by the statute.
II. DISCUSSION
II. DISCUSSION
Count 3 of the indictment charged that "the defendants
herein, aiding and abetting each other, did knowingly, willfully
and intentionally possess and carry a .32 caliber Smith & Wesson
revolver during and in relation to a drug trafficking crime" in
violation of 18 U.S.C. 924(c)(1). In the original panel
opinion, we held that there was insufficient evidence for a jury
to infer that defendant Troche-Matos was guilty of violating the
statute or aiding and abetting in its violation. There was no
evidence that Troche-Matos actually or constructively possessed
the gun; nor was there evidence that he was aware of its
existence. In view of the circumstances, we held that the only
way a jury could link Troche-Matos to the gun would be through
sheer speculation and conjecture. As the government did not
1 As noted, supra, the convictions of each appellant on count 2,
for importation of a controlled substance, were reversed by the
en banc court.
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challenge these holding in its petition for rehearing en banc, we
reiterate that Troche-Matos' conviction on the gun count must be
reversed for lack of sufficient evidence.
As for Su rez-Maya and Ram rez-Ferrer, the scope of our
present review was established by the en banc opinion, which held
that "defendants' conviction for 'use' should be vacated, and
they should face only reconsideration of their convictions under
the carry prong." Ram rez-Ferrer, slip op. at 10 (citing Bailey,
U.S. at , 116 S. Ct. at 508-09). The en banc panel based
its holding on its understanding of Bailey as having limited the
word 'use' to the extent that it cannot apply in the instant case
and having emphasized that "'carry' has meanings not covered by
'use.'" Id., slip op. at 10.
Although the defendants continue to style their appeal
as an objection to sufficiency of the evidence, it is clear that
the Supreme Court's decision in Bailey requires us to consider
whether the convictions on the gun count can be sustained despite
the erroneous instruction of the district court. When we wrote
the original panel opinion, the district court's instruction was
an accurate account of the law of the circuit; but in light of
Bailey, it is plainly incorrect in regard to the meaning of
"use."
The district court gave the jury the following
instruction on the elements of 18 U.S.C. 942(c)(1):
[T]he Government is not required to prove
that the defendant or defendants actually
fired the weapon or brandished it . . .
at someone in order to prove use, as that
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term used [sic] in these instructions.
However, you must be convinced beyond a
reasonable doubt that the firearm played
a role in or facilitating the commission
of the drug offense, in other words, you
must find that the firearm was an
integral part of the offense charged.
Now, to prove that a defendant carried a
firearm, the Government does not only
have to prove that a defendant carried a
firearm, the Government need only prove
that a firearm was accessible during and
in relation to a drug offense.
The district court's instruction, which could be heard by a
reasonable jury to endorse the "fortress theory" rejected by
Bailey, was (in hindsight) erroneous. However, the defendants
did not object to it; we therefore review only under a "plain
error" standard. This standard requires not only that the error
be plain -- which in light of Bailey this probably is -- but also
that affirmance would result in a "miscarriage of justice," one
that would jeopardize public confidence in the integrity of the
judicial process. United States v. Olano, 113 S. Ct. 1770, 1779
(1993); United States v. Randazzo, Nos. 95-1489, 95-1768, slip
op. at 17 (1st Cir., April 8, 1996).
In this case, the standard would require reversal of
Su rez-Maya's and Ram rez-Ferrer's convictions only if we have
substantial doubt about the certainty of the defendants' guilt.
In making this determination, we consider both the evidence
presented by the government and what we can infer from the
verdict that the jury did in fact decide.
We begin by defining "carry" for purposes of 18 U.S.C.
924(c)(1). We take our lead from United States v. Manning, No.
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95-1199, slip op. (1st Cir. March 21, 1996), in which we affirmed
a district court's denial of a motion for acquittal on 924(c)(1)
charges based on Bailey's treatment of "use," because even though
"use" no longer could cover defendant's actions, those actions
met "any reasonable construction" of "carry." Id., slip op. at
6. In Manning, detectives ordered a defendant to stop while
defendant was holding a briefcase, which later was found to
contain illegal drugs and a loaded handgun. Id., slip op. at 7.
We note in passing that either defendant may be convicted as
"aiding and abetting" if one defendant is found to have carried a
firearm in violation of section 924(c)(1), and if the evidence is
sufficient for a jury to infer that the other defendant aided and
abetted this conduct.
As we noted in Manning, which was decided after the en
banc oral argument was heard and after Bailey, but before the en
banc opinion was issued, "[b]y narrowing the interpretation of
'use' to instances of active employment, the Bailey court
recognized that the 'carry' prong would take on a new
significance." Id., slip op. at 6. Although in Manning, the
court found that it did not have to delineate the "precise
contours" of the "carry" prong, id., slip op. at 6, it noted that
"the word 'carry' is variously defined as 'to move while
supporting (as . . . in one's hands or arms),' 'to move an
appreciable distance without dragging,' and 'to bring along to
another place,'" id., slip op. at 7 (quoting Webster's Third New
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International Dictionary 343 (1986)).2 This focus on dictionary
meanings follows naturally from Bailey's reliance on the
"ordinary and natural" meanings in construing the term "use" in
section 924(c)(1). See Bailey, 116 S. Ct. at 506 (discussing
definitions taken from Webster's New International Dictionary of
English Language and Black's Law Dictionary). In Manning, the
court concluded that the defendant's "alleged actions readily
me[t] all of the[] definitions" of "carry" taken from Webster's.
Manning, slip op. at 7; see also United States v. Hern ndez, 1996
WL 34822, *3, F.3d (9th Cir. 1996) (quoting Webster's and
Black's).
Our decision in Manning limits the construction of
"carry" to situations in which the "firearm" has been "moved" or
"brought along to another place," since all three parts of the
definition adopted there contain this element of transportation.
See also United States v. Murrietta-N ez, 1996 WL 65240, *5 (9th
Cir. 1996) (rejecting the possibility of a "carry" prong-based
conviction where a firearm was found under a bed near a bundle of
marijuana, noting that "storing the gun for possible, later use"
does not constitute "carrying" under Bailey); Hern ndez, 1996 WL
2 With the first two of the three parts of the definition of
"carry" relied on by the court in Manning, there is a seeming
ambiguity as to whether the subject of "to move" is the actor or
the firearm -- that is, whether "move" is used here as a
transitive or intransitive verb. The discussion in Manning
proceeds as though "move" were transitive. Because we do not
believe it alters our analysis, we continue with this assumption,
without deciding the question. From the evidence, the jury could
reasonably infer both that the firearm moved and that defendants
moved it (by having it aboard a moving boat).
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34822 at *3, F.3d at (concluding that "in order for a
defendant to be convicted of 'carrying' a gun in violation of
section 924(c)(1), the defendant must have transported the
firearm on or about his or her person") (emphasis added).
Furthermore, we must bear in mind that the government must
present evidence from which a reasonable juror could conclude
that this transportive function was "during" and "in relation to"
the crime of possession with intent to distribute. See Manning,
slip op. at 7 (quoting 924(c)(1)).
However, unlike the court in Manning, we have no record
evidence from which a jury could reasonably infer that either
Su rez-Maya or Ram rez-Ferrer moved the firearm while
"supporting" it "in [their] hands or arms." However,
transporting a firearm on a boat would certainly implicate moving
it "an appreciable distance without dragging" it or bringing it
"along to another place." As a result, we are forced move beyond
Manning and map the contours of "carry" in further detail.
Specifically, we must decide whether there exists some required
degree of proximity in conjunction with this drug crime-related
transportation, which demands delving into a line-drawing
problem. At one extreme, "carry" could be defined so narrowly as
to only allow convictions where a factfinder could reasonably
conclude that the defendant moved while maintaining actual
physical contact with a firearm. At the other extreme, "carry"
might be so loosely construed that a defendant could be deemed to
"carry" the firearm when he or she merely had transported a
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firearm without touching it or having it accessible -- for
example, in a car trunk or in some hard-to-reach recess of a
boat. We must address this question because while evidence was
presented from which the jury could have reasonably inferred:
(a) that the firearm was transported (on the boat) during and in
relation to the drug crime in question and (b) that the firearm
was within easy reach of defendant Ram rez-Ferrer, no evidence
was proffered to justify a reasonable inference (c) that any
defendant had any degree of physical contact with the weapon, or
had otherwise "support[ed]" it, as "in one's hands or arms."
Since Bailey, was decided, a few circuits have
addressed the scope of the "carry" prong. In Hern ndez, the
Ninth Circuit confronted a situation in which a gun was found in
a locked toolbox together with cocaine in defendant's garage
after defendant was arrested during a controlled buy. Hern ndez,
1996 WL 34822 at *1-2. The Ninth Circuit concluded that, for a
"carrying" conviction under section 924(c)(1), "the defendant
must have transported the firearm on or about his person,"
meaning that "the firearm must have been immediately available
for use by the defendant." Id. at *3. As a result, the Ninth
Circuit refused to find that the defendant carried a firearm for
the purposes of section 924(c)(1).
Two circuits have specifically addressed situations
involving the presence of guns and drugs in automobiles. In
United States v. Riascos-Su rez, 73 F.3d 616, 623 (6th Cir.
1996), the Sixth Circuit found a defendant's conduct sufficient
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for conviction under the "carry" prong where the defendant had a
gun on the driver's side of the dashboard console of a car that
also contained drugs. The court there stated that it "h[e]ld
that [defendant] carried the weapon for purposes of section
924(c)(1) because the firearm was within reach and immediately
available for use." Id. at 623. The Sixth Circuit clarified its
definition of "carry" in United States v. Moore, 76 F.3d 111, 113
(6th Cir. 1996). There, the court remanded a case in which the
defendant also had guns within easy reach. Id. at 113-114.
However, the court distinguished the conduct of the defendant in
Moore from that of the defendant in Riascos-Su rez because the
defendant in Moore did not bring the drugs with him in the course
of his drug trade. Id. at 113. The court noted that "immediate
availability is [] a necessary, but not sufficient determinant."
Id.
The Eleventh Circuit has also addressed the carry prong
in an automotive context. United States v. Farris, 1996 WL
82490, *1-3 (11th Cir. 1996). In Farris, the Eleventh Circuit
confronted a situation where a firearm was found in the glove
compartment of a co-conspirator's car used to transport illegal
drugs to the controlled buy at which defendant was arrested, and
which contained drugs. Id. Though it upheld conviction under
the "carrying" prong, the Eleventh Circuit did not state its
opinion as to the government's broader argument in that case,
unqualified by any requirement of "accessibility," that "section
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924(c) applies when a defendant carries a firearm in a vehicle
that is being used as a base for drug distribution." Id. at *3.
Defendants here do not dispute that the weapon was
aboard a moving boat, and the en banc court has upheld
defendants' possession convictions. Thus, they do not challenge
the proposition that they physically caused the weapon in
question to be transported and that this transportation was
during -- in the sense of contemporaneous with -- their crime of
possession with intent to distribute illegal drugs. The evidence
here, including diagrams of the boat with the position of
defendants and the weapon clearly indicated, was sufficient for a
reasonable jury to infer that the loaded gun was within easy
reach of defendant Ram rez-Ferrer. Given the above persuasive
authority emphasizing accessibility and transport and given the
facts of the instant case, we hold that Ram rez-Ferrer's conduct
suffices for conviction under an ordinary and natural meaning of
the word "carry." We express no opinion, however, on the theory
that a conviction for "carrying" may be upheld whenever a gun is
merely present on a boat or other vehicle employed in a drug
possession crime, regardless of accessibility. Ram rez-Ferrer's
proximity also suffices for a jury reasonably to infer that
Su rez-Maya, as captain of the boat and the defendant apparently
responsible for the particular boat (it allegedly belonged to a
relation of his), aided and abetted Ram rez-Ferrer's conduct.
See, e.g., United States v. Price, 1996 WL 67398, *4 (3d Cir.
1996) (upholding conviction of defendant for aiding and abetting
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co-defendant's 924(c)(1) violation, since jury could have
concluded, from ample evidence, that defendant knew of and
benefitted from co-defendant's gun-related conduct). Thus, we
uphold both defendants' convictions under section 924(c)(1)'s
"carry" prong.
Ram rez-Ferrer and Su rez-Maya also argue that even if
they "carried" the gun "during" their drug crime, they did not do
so "in relation" to their drug crime. Specifically, they argue
that they did not know the gun was there, pointing out that it
was rusty and that the boat did not belong to either of them.
But the defendants do not allege that there was any error in the
jury instructions in this regard. Therefore, the short answer to
this objection is that we affirm a jury's conviction if a
rational trier of fact could have found the defendants guilty
beyond a reasonable doubt. See Farris at *3. The evidence need
not exclude every hypothesis of innocence. Id. The jury could
reasonably have attributed knowledge and intent to benefit from
the gun to both Ram rez-Ferrer and Su rez-Maya, the boat's
captain and the self-admitted principal with respect to the drug
possession offense. Thus, the evidence is sufficient to uphold
both defendants' convictions under section 924(c)(1).
CONCLUSION
CONCLUSION
As a result of the foregoing, the judgment of the
district court is reversed in part and affirmed in part.
reversed in part affirmed in part
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