United States Court of Appeals
For the First Circuit
No. 02-1847
UNITED STATES OF AMERICA,
Appellee,
v.
JEAN CARLOS CRUZ,
Defendant, Appellant.
No. 02-1970
UNITED STATES OF AMERICA,
Appellee
v.
LUIS LUGO-VELEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Stapleton,* Senior Circuit Judge, and
Howard, Circuit Judge.
Rachel Brill, for appellant Luis Lugo-Velez.
Ignacio Fernández de Lahongrais, for appellant Jean Carlos
Cruz.
Thomas Klumper, Assistant United States Attorney with whom
H.S. Garcia, United States Attorney and Sonia I. Torres, Assistant
United States Attorney were on brief, for appellee.
December 19, 2003
*Of the Third Circuit, sitting by designation.
HOWARD, Circuit Judge. Following a five-day trial, a
jury convicted co-defendants Luis Lugo-Velez and Jean Carlos Cruz
of, inter alia, possession of narcotics with intent to distribute
and possession of firearms -- including machine guns –- in
furtherance of a drug-trafficking scheme. These consolidated
appeals require us to decide (1) whether the district court erred
in various evidentiary rulings, and (2) whether the evidence was
sufficient to support the verdicts. Having carefully reviewed the
record, we affirm the convictions of both defendants.
I.
We recite the facts in the light most favorable to the
verdicts. See United States v. Echeverri, 982 F.2d 675, 676 (1st
Cir. 1993).
On October 15, 2001, Puerto Rico Police Agent Angel
Aviles parked an unmarked vehicle in front of dead-end Street 2A in
Toa Alta and began surveillance of an area known within the police
department to be a drug point. Agent Aviles immediately focused
his attention on three individuals –- later identified as Lugo,
Cruz, and Jose Gonzalez Bernard -- standing 40 feet away from him,
outside a bar known as "The Pub." Each man was carrying a firearm
on his waistline; in addition, Cruz had a "fanny pack" strapped
across his chest and appeared "ready to receive money from some
person."
-3-
Agent Aviles next observed an unidentified man, who was
carrying money, approach Cruz from an unidentified vehicle that had
just arrived on the scene. After encountering Cruz, the individual
returned to his vehicle and drove away. The substance of this
meeting –- namely, whether there had been an actual exchange of
drugs or money -- was not witnessed.
At one point during his surveillance, Agent Aviles saw
Gonzalez disappear around the side of The Pub; when Gonzalez
reappeared, he and another unidentified individual were carrying a
pillowcase that had rifle barrels protruding from it.1 These men
then lifted the pillowcase, placed it into a nearby garbage can,
and, with the assistance of Lugo and Cruz, covered it with a
blanket and some trash. After witnessing these activities, Agent
Aviles immediately called for backup.
When the reinforcement agents arrived three to four
minutes later, backup Agent Luis Sales-Morales noticed that Cruz
was carrying a pistol on his waistline. During an ensuing chase,
Agent Sales saw Cruz toss his firearm into an overgrown lot.
Although the handgun was never recovered, Cruz was eventually
arrested as he tried to scale a fence. At the time of his arrest,
Cruz was carrying a nine-millimeter magazine, $526 cash, and a
1
The record is unclear as to whether these events occurred
before or after Cruz's encounter with the unidentified, money-
carrying individual.
-4-
fanny pack (strapped across his chest) containing substances that
later tested positive for cocaine base, heroin, and cocaine.
Meanwhile, backup Agent Nancy Mendez was pursuing
Gonzalez. When she caught him just outside The Pub, Gonzalez
attempted to draw his weapon. In response, Agent Mendez grabbed
his arm and was dragged inside The Pub. There, during her struggle
with Gonzalez, she observed Lugo for the first time; he was
standing behind the bar with a gun in his hand. Agent Aviles
testified as to how and when Lugo had entered The Pub: "I saw
Mendez who was going to arrest the defendants, and they started
running. At that moment, I started running, following her. So she
went into [The Pub] after, going after the defendants."
Gonzalez eventually surrendered and was taken outside The
Pub and arrested. Once outside, Agent Mendez told another agent to
go inside The Pub, arrest Lugo, and seize the firearm that she had
seen him conceal between a bottle rack and the bar.
Lugo was arrested without incident. Although no drugs or
weapons were found on his person, agents successfully recovered the
pistol –- a loaded nine-millimeter Smith & Wesson –- that Lugo had
hidden behind the bar.
The principal suspects having been apprehended, Agent
Aviles next seized the pillowcase from the garbage can. Inside the
pillowcase were two Romanian Arms rifles that, as an expert witness
later testified, had been converted into machine guns, as well as
-5-
an arsenal rifle, a pistol, and large amounts of ammunition. The
serial numbers on the two machine guns and the pistol had been
removed, and all four firearms were loaded.
On November 8, 2001, a federal grand jury returned an
indictment charging Lugo, Cruz, and Gonzalez with several offenses:
Count One alleged that the defendants, aiding and abetting each
other, knowingly possessed cocaine base with the intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §
2; Count Two alleged that the defendants, aiding and abetting each
other, knowingly possessed heroin with the intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count Three
alleged that the defendants, aiding and abetting each other,
knowingly possessed cocaine with the intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;2 Count Five
alleged that the defendants, aiding and abetting each other,
possessed a firearm in furtherance of a drug-trafficking scheme, in
violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2; Count Six
alleged that the defendants, aiding and abetting each other,
knowingly possessed a firearm shipped or transported in interstate
commerce and from which the manufacturer's serial number had been
obliterated or removed, in violation of 18 U.S.C. § 922(k) and 18
U.S.C. § 2; and Count Seven alleged that the defendants, aiding and
2
Count Four is not relevant to this appeal.
-6-
abetting each other, possessed a machine gun, in violation of 18
U.S.C. § 922(o) and 18 U.S.C. § 2.
On February 13, 2002, a joint trial began, at which Cruz
and Lugo were co-defendants.3 On February 20th, the jury convicted
both defendants on all counts. Thereafter, Cruz was sentenced to
concurrent prison terms of 63 months for Counts One, Two, and Three
and 60 months for Counts Six and Seven. Lugo was sentenced to
concurrent prison terms of 51 months for Counts One, Two, and Three
and 60 months for Counts Six and Seven. Additionally, because the
jury found that each defendant had possessed a machine gun in
furtherance of a drug-trafficking scheme, both Cruz and Lugo were
sentenced to 360 months of imprisonment for Count Five, to be
served consecutive to their other sentences.4 See 18 U.S.C. §
924(c)(1)(B).
These appeals followed.
3
Gonzalez pled guilty and is not a party to this proceeding.
4
The 360-month sentences imposed for Count Five were in
addition to, and separate from, the sentences imposed for Count
Seven. Count Five charged the defendants with possession of
firearms –- including machine guns -– in furtherance of a drug-
trafficking scheme. In convicting the defendants on Count Five,
the jury answered "yes" to all three of the following options: one
or more pistols; one or more rifles; one or more machine guns.
Count Seven charged the defendants with mere possession of
machine guns, which is made illegal under 18 U.S.C. § 922(o).
-7-
II.
We are presented with two issues on appeal: (1) whether
the district court erred in various evidentiary rulings; and
(2) whether the evidence was sufficient to support the verdicts.
Given these separate issues, two standards of review
apply. First, we review a district court's decision to admit
evidence for abuse of discretion. See Larch v. Mansfield Mun.
Elec. Dept., 272 F.3d 63, 72 (1st Cir. 2001); see also Udemba v.
Nicoli, 237 F.3d 8, 14 (1st Cir. 2001) ("[A] trial court enjoys
considerable discretion in connection with the admission or
exclusion of evidence. . . ."). Second, in deciding sufficiency
challenges, "we review all the evidence, direct and circumstantial,
in the light most favorable to the prosecution, drawing all
reasonable inferences consistent with the verdict, and avoiding
credibility judgments, to determine whether a rational jury could
have found guilt beyond a reasonable doubt."5 United States v.
Baltas, 236 F.3d 27, 35 (1st Cir. 2001) (citations omitted); see
also United States v. Ruiz, 105 F.3d 1492, 1495 (1st Cir. 1997)
(noting that "we review de novo the defendants' challenge to the
5
Following the government's presentation of its case-in-chief,
both Cruz and Lugo moved unsuccessfully for judgments of acquittal
pursuant to Fed. R. Crim. P. 29. Each defendant thereafter
presented evidence in his own defense, thus waiving review of his
initial motion. See United States v. Ruiz, 105 F.3d 1492, 1495 n.1
(1st Cir. 1997) (citing United States v. Amparo, 961 F.2d 288, 291
(1st Cir. 1992)). Therefore, we review the evidence presented by
Cruz and Lugo during their cases-in-chief in the light most
favorable to the verdicts. See Ruiz, 105 F.3d at 1495 n.1.
-8-
evidentiary sufficiency of their convictions, construing the
evidence in the light most favorable to the government").
A. Evidentiary Rulings
Lugo contends that the district court improperly admitted
(1) "unduly prejudicial testimony concerning the presence of a drug
point on 2A Street near The Pub," and (2) "various untagged weapons
with obliterated serial numbers, [specifically] the two machine
guns."6 We find no abuse of discretion.
(1) The Drug-Point Testimony
Despite objection, Agent Aviles was allowed to testify at
trial as follows:
Q: Now, the young man to this side of the
table [Cruz], can you please tell us what, if
anything, was he doing, aside from the fact
that he had a weapon in his waist?
A: [Cruz] was standing there. He had like a
brown bag, and he was ready to receive money
from some person. I have knowledge that that
is the drug point of that sector.
Q: Excuse me. Before you go into anything
else --
COURT: Let him finish.
A: Personally myself I've arrested several
people at that location for violation of
weapons and drug laws.
Lugo argues that this testimony should have been excluded
because "[Agent] Aviles' assertions [regarding the 'drug point']
6
Cruz does not contest any evidentiary rulings.
-9-
were unsupported by statistics, personal knowledge, or details –-
and they were unduly prejudicial." As best we can tell,7 Lugo is
challenging the drug-point testimony on two separate bases: (a)
lack of foundation, in violation of Fed. R. Evid. 602; and (b)
unfair prejudice, in violation of Fed. R. Evid. 403. Neither is
convincing.8
First, contrary to Lugo's assertion, the government did,
in fact, present evidence sufficient to support a finding that
Agent Aviles had the requisite personal knowledge of the area's
history. See Fed. R. Evid. 602 ("A witness may not testify to a
matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may, but need not, consist of
the witness' own testimony."). Specifically, Agent Aviles
testified that he had been a member of the Drugs and Narcotics
Division of the Puerto Rico Police Department for approximately six
years, that he had been involved with approximately 80 or 90
investigations involving drug points, that he knew of other agents
who had made drug arrests outside The Pub, and that he himself had
7
Lugo's brief refers neither to the Federal Rules of Evidence
nor to case law.
8
Lugo also contends that the government should not have been
allowed to refer to the drug-point testimony in its closing
argument. Because we reject the underlying evidentiary challenges
to the drug-point testimony, this contention fails.
-10-
previously arrested an individual on drug charges outside The Pub.9
In addition, three other agents provided corroborating testimony
that the area in front of The Pub was known within the police
department to be a drug point. Given the testimony of these four
witnesses, the district court acted well within its discretion in
determining that there was an adequate foundation for Agent Aviles'
testimony.
We next consider whether the district court abused its
discretion in determining that the drug-point testimony was not
unduly prejudicial. See Fed. R. Evid. 403 ("Although relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . ." (emphasis
added)); see also United States v. Pitrone, 115 F.3d 1, 8 (1st Cir.
1997) ("Virtually all evidence is prejudicial -– if the truth be
told, that is almost always why the proponent seeks to introduce it
–- but it is only unfair prejudice against which the law protects."
(emphasis retained)). According to Lugo, this testimony "allowed
[the jury] to infer impermissibly that[,] because Mr. Lugo was
arrested at a 'point,' he must have been involved in the drug trade
there."
9
On direct examination, Agent Aviles testified that he had
personally arrested "several people" at the drug point. However,
on cross examination, Agent Aviles indicated that he had only made
one such arrest.
-11-
"Only rarely –- and in extraordinarily compelling
circumstances –- will we, from the vista of a cold appellate
record, reverse a district court's on-the-spot judgment concerning
the relative weighing of probative value and unfair effect."
Freeman v. Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir.
1988). This is not such a circumstance. Here, the drug-point
testimony was probative not only to explain Agent Aviles' presence
at the scene but also to corroborate the inference that Cruz and
Lugo were involved in a drug-trafficking scheme –- a scheme that
would be independently suggested by other evidence. So understood,
the district court could have concluded that the prejudice caused
by such testimony was not unfair; it was, instead, merely the
negative result of the testimony's probative value.
(2) The Machine Guns
Lugo next argues that the two machine guns were not
properly authenticated, see Fed. R. Evid. 901(a), and thus should
not have been admitted into evidence. We disagree.10
10
The record indicates that Lugo objected to the admission of
the second of these two weapons but not the first. Failure to
preserve a claim of error as to the admission of the first machine
gun does, of course, affect our standard of review. See United
States v. Roberts, 119 F.3d 1006, 1014 (1st Cir. 1997) ("[E]rrors
not objected to at trial will be reviewed by the appellate court
only when they are 'plain' and undermine the fundamental fairness
of the trial." (citations omitted)). However, because Lugo's
argument fails even under the more appellant-friendly abuse-of-
discretion standard discussed above, we need not provide a separate
analysis for each weapon.
-12-
"Federal Rule of Evidence 901(a) requires the trial court
to determine if there is a 'reasonable probability' that the
evidence is what it is purported to be." United States v. Neal, 36
F.3d 1190, 1210 (1st Cir. 1994); see also United States v. Twitty,
72 F.3d 228, 232 (1st Cir. 1995) ("All that was required for
admission was evidence sufficient to permit a reasonable jury to
conclude that the guns were the same . . . .").
Here, two agents were called to authenticate the machine
guns. First, Agent Aviles testified to the following chronology:
(1) immediately following the arrests, he himself seized the
pillowcase from the garbage can; (2) the pillowcase's contents,
including two Romanian Arms rifles, were then taken to police
headquarters; (3) Agent Aviles next phoned Agent Rios from the
Bureau of Alcohol, Tobacco, and Firearms and requested that Rios
travel to headquarters to take possession of the weapons; and (4)
the weapons remained in his custody until Agent Rios arrived.
Second, Agent Rios testified (1) that, upon arriving at police
headquarters on October 15, 2001, he prepared a property receipt
(describing the contents of the pillowcase), which both he and
Aviles signed; (2) that he thereafter took possession of the
weapons; (3) that, two days later, on October 17, 2001, he prepared
a property-inventory form, on which the seized weapons were listed;
and (4) that the weapons remained in his custody from October 15th
through October 17th. Both men testified that the weapons sought
-13-
to be introduced at trial were, in fact, the weapons that earlier
had been in their respective custodies. We conclude that the
evidence was sufficient to lead a reasonable jury to the same
conclusion; accordingly, the admission of this evidence was not
erroneous.
B. Sufficiency of the Evidence
Lugo, but not Cruz, challenges the sufficiency of the
evidence with respect to his drug-trafficking convictions. See 21
U.S.C. § 841(a)(1) (criminalizing possession of narcotics with
intent to distribute); see also 18 U.S.C. § 2 ("Whoever commits an
offense against the United States or who aids [or] abets . . . its
commission is punishable as a principal."). Additionally, both
Lugo and Cruz argue that there was insufficient evidence to support
their respective convictions for possession of a firearm in
furtherance of a drug-trafficking scheme. See 18 U.S.C.
§ 924(c)(1)(A) (providing minimum sentences for such conduct); see
also Id. § 924(c)(1)(B) (mandating an enhanced sentence if the
firearm possessed by the individual in violation of 18 U.S.C. §
924(c)(1)(A) was a machine gun). We affirm the convictions.
(1) Lugo's Convictions under 21 U.S.C. § 841(a)(1)
Lugo contends that there was insufficient evidence to
support the jury's findings that he aided and abetted the
possession of cocaine base, heroin, and cocaine. Accordingly, he
-14-
asks us to set aside his convictions on Counts One, Two, and Three
of the indictment.
One who aids and abets a crime is punishable as a
principal. See 18 U.S.C. § 2; see also Nye & Nissen v. United
States, 336 U.S. 613, 618-19 (1949). Accordingly, we must affirm
Lugo's conviction if a reasonable jury could have found beyond a
reasonable doubt both that (1) the principal (here, Cruz) knowingly
possessed and intended to distribute drugs, and that (2) Lugo
"consciously shared that criminal design, associated himself with
it, and actively sought to ensure its success." United States v.
Arias, 238 F.3d 1, 4-5 (1st Cir. 2001) (citations and internal
quotation marks omitted); see also United States v. Campa, 679 F.2d
1006, 1010 (1st Cir. 1982) ("The elements that the government was
required to prove [to show that appellant aided and abetted the
possession of narcotics] were that appellant associated himself
with the venture, that he participated in it as something he wished
to bring about, [and] that he sought by his action to make it
succeed." (citations and quotation marks omitted)). We conclude
that the evidence was sufficient to prove all elements.
First, there was ample evidence to support a finding that
Cruz had possessed controlled substances with the intent to
distribute. Agent Aviles testified that, while conducting
surveillance of a known drug area, he had observed an unidentified,
money-carrying individual approach a man (later identified as Cruz)
-15-
who had a fanny pack strapped across his chest and who appeared
"ready to receive money." These observations were corroborated –-
indeed, confirmed –- when Agent Sales arrested Cruz and found
drugs, together with a substantial amount of cash, in a fanny pack
on Cruz's person.
Lugo argues that, "even if the evidence [was] sufficient
to determine that Cruz possessed controlled substances with the
intent to distribute, the evidence was entirely insufficient to
enable the conclusion that . . . Lugo aided and abetted in that
venture." Specifically, he notes that "[t]he prosecution simply
failed to overcome the presumption of innocence and produce
evidence that [he] was more than merely present in connection with
any controlled-substance offense." We are not persuaded.
While "mere presence at the scene of the crime" or "mere
association with conspirators" is not enough to establish guilt,
see United States v. Gomez-Pabon, 911 F.2d 847, 853 (1st Cir.
1990), "the mere presence defense is not so ubiquitous as to
envelop every drug-trafficking case in which the government lacks
direct evidence of a defendant's complicity." Echeverri, 982 F.2d
at 678. See also United States v. Flores-Rivera, 56 F.3d 319, 324
(1st Cir. 1995) ("Mere presence at the scene and close association
with those involved are insufficient factors alone; nevertheless,
they are relevant factors for the jury." (quoting United States v.
Sanchez, 961 F.2d 1169, 1174 (5th Cir. 1992)) (emphasis in
-16-
original)). "As we repeatedly have recognized, a jury is free to
rely on its common sense and may infer that criminal conspirators
do not involve innocent persons at critical stages of a drug deal."
United States v. DiMarzo, 80 F.3d 656, 661 (1st Cir. 1996)
(citations omitted). "[S]uch is not normally the conduct that one
would expect of conspirators engaged in conduct which by its nature
is kept secret from outsiders." United States v. Smith, 680 F.2d
255, 260 (1st Cir. 1982).
Here, of course, Lugo was more than merely present; the
evidence suggests that he was present for the important purpose of
protecting the money and the drugs. See Echeverri, 982 F.2d at 678
("[A] defendant's 'mere presence' argument will fail in situations
where the 'mere' is lacking."). See also United States v. Lema,
909 F.2d 561, 570 (1st Cir. 1990) ("[P]resence on a single occasion
may support a conviction for aiding and abetting if the surrounding
circumstances lead to a reasonable inference that the defendant
must have been a knowing participant." (citations omitted and
emphasis added)). For example, two separate officers testified
that Lugo was carrying a pistol, which, upon seizure, was found to
be fully loaded with a round of ammunition in its chamber. In
addition, Lugo was observed assisting Cruz and Gonzalez in the
concealment of the weapons contained within the pillowcase.
Moreover, all of these events were occurring in a known drug
area –- an area that Lugo promptly fled once police arrived -- and
-17-
there is nothing in the record to suggest that any of these weapons
were present for any other reason except to protect Cruz in the
event that the upcoming drug deals turned sour. Such evidence (and
the lack of an alternative explanation), coupled with the fact that
Cruz was arrested while carrying various drugs and a substantial
amount of cash, could lead a reasonable jury to conclude beyond a
reasonable doubt that Lugo associated himself with Cruz's illegal
venture, that he knowingly participated in it, and that, through
his actions, he actively sought to protect Cruz and thereby help to
ensure the success of the operation.
Nor are we persuaded by the argument that, because Agent
Aviles failed to testify that Lugo had been present during the
alleged drug exchange, the jury had no evidence on which to base
its inference that Lugo knew about Cruz's illegal behavior. While
such testimony would have been helpful in proving that Lugo had
aided and abetted Cruz, it was not, as discussed above, the only
mechanism through which the government could prove that Lugo had
the requisite knowledge.
(2) Defendants' Convictions under 18 U.S.C. § 924(c)(1)
Finally, we consider whether the evidence was sufficient
to support the jury's findings that, on October 15, 2001, the
defendants possessed firearms, including machine guns, in
furtherance of a drug-trafficking scheme.
-18-
The applicable criminal statute provides that
(A) . . . any person who, during and in
relation to any . . . drug trafficking crime
. . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such . . . drug trafficking crime
[be sentenced according to this subsection].
(B) If the firearm possessed by a person
convicted of a violation of this
subsection . . . is a machine gun . . ., the
person shall be sentenced to a term of
imprisonment of not less than 30 years.
18 U.S.C. § 924(c)(1); see also 18 U.S.C. § 2.
Due to the thirty-year prison term mandated by 18 U.S.C.
§ 924(c)(1)(B), both appeals focus primarily on the government's
machine-gun evidence. However, given additional evidence that Lugo
was carrying a pistol on his waistline, the machine guns are only
one variable in Lugo's 18 U.S.C. § 924(c)(1)(A) equation.11
Applying the statutory language to his particular appeal, then, we
must affirm the conviction if the evidence was sufficient to
support a finding that Lugo knowingly possessed (or aided and
abetted the possession of) either a sidearm weapon in furtherance
of the drug-trafficking scheme or a machine gun in furtherance of
the drug-trafficking scheme. The propriety of the thirty-year
11
Cruz was not charged with possession of the pistol that
allegedly was worn on his waistline and later discarded.
Accordingly, his sufficiency challenge concerns only those weapons
found in the pillowcase.
-19-
prison sentences depend, of course, exclusively on the sufficiency
of the machine-gun evidence.
Regarding the sidearm evidence, Lugo was seen carrying a
pistol by two separate officers. First, Agent Aviles testified
that, when he arrived on the scene, he noticed that Lugo "had a
black pistol [on his waistline]." Second, Agent Mendez testified
that, during her struggle inside The Pub with Gonzalez, she
observed Lugo "placing a black pistol in between the bottle rack
and the bar." This black pistol was subsequently seized by police
and ultimately admitted into evidence through the authentication
testimony of Agent Mendez. Based on this evidence, then, we have
no difficulty concluding that Lugo possessed a pistol.
Of course, given the text of the statute, merely
determining that Lugo was in possession of a sidearm is not enough
to support the conviction; we must also consider whether the weapon
was possessed "in furtherance of . . . a drug-trafficking crime."
18 U.S.C. § 924(c)(1)(A) (emphasis added). The jury reasonably
concluded that it was.
We have recently explained the "in-furtherance-of"
requirement:
When guns and drugs are found together and a
defendant has been convicted of possession
with intent to distribute, the gun, whether
kept for protection from robbery of drug-sale
proceeds, or to enforce payment for drugs, may
reasonably be considered to be possessed 'in
furtherance of' an ongoing drug-trafficking
crime.
-20-
United States v. Garner, 338 F.3d 78, 81 (1st Cir. 2003); see also
United States v. Luciano, 329 F.3d 1, 6 (1st Cir. 2003) ("Given the
close proximity of the firearms and the loaded magazines to the
significant stockpile of heroin, we have no difficulty concluding
that there was a sufficient nexus between the drug trafficking
crime and the firearms to sustain a conviction under [18 U.S.C.]
§ 924."); cf. United States v. Ceballos-Torres, 218 F.3d 409, 415
(5th Cir. 2000) ("Together, [factors such as the type of drug
activity that is being conducted, accessibility of the firearm, the
type of the weapon, whether the weapon is stolen, the status of the
possession, whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the gun is
found] reasonably support a finding that [the firearms] protected
his drugs and money against robbery. Possession of the [firearms]
was, therefore, in furtherance of drug trafficking.").
Here, while Lugo's weapon was not found "together" with
the drugs in a literal sense, the jury had reason to conclude that
Lugo's sidearm was possessed in furtherance of the drug-trafficking
scheme: the weapon was loaded, easily accessible, in close
proximity to the drugs, and its bearer was standing near a drug-
carrying individual in a known drug area. There is nothing in the
record to suggest that the firearm served any other purpose, and we
are not persuaded by Lugo's "mere presence" defense. See
discussion in II. B.(1), above.
-21-
Because we conclude that there was sufficient evidence to
support a finding that Lugo possessed a sidearm in furtherance of
a drug-trafficking scheme, see 18 U.S.C. § 924(c)(1)(A), we will
not set aside his conviction on Count Five. Accordingly, regarding
Lugo, the machine-gun issue is relevant to Count Five only insofar
as proper sentencing is concerned. See 18 U.S.C. § 924(c)(1)(B).
Both Lugo and Cruz contend that the evidence was
insufficient to prove beyond a reasonable doubt that they had
(either actively or constructively) possessed a machine gun in
furtherance of the drug-trafficking scheme. We disagree.
Although there was no evidence that Cruz or Lugo had "any
direct or actual possessory interest" in the machine guns that were
contained within –- and protruding from –- the pillowcase, see
United States v. Torres-Maldonado, 14 F.3d 95, 102 (1st Cir. 1994),
the jury, having been properly instructed, could have concluded
that the defendants had constructive possession of the machine
guns.
"Constructive possession exists when a person 'knowingly
has the power and intention at a given time to exercise dominion
and control over an object either directly or through others.'"
Id. (quoting United States v. Garcia, 983 F.2d 1160, 1164 (1st Cir.
1993)); see also United States v. Akinola, 985 F.2d 1105, 1109 (1st
Cir. 1993) ("Constructive possession may be proved by demonstrating
defendant's power and intent to exercise ownership, dominion, or
-22-
control over the contraband itself, or over the area in which the
contraband was concealed. Constructive possession may be sole or
joint and may be achieved directly or through others." (citations
omitted)).
In this case, the jury had before it Agent Aviles'
testimony that, after Gonzalez had disappeared behind a building
and reappeared carrying a pillowcase from which rifle barrels were
protruding, Cruz and Lugo assisted Gonzalez in "cover[ing] the long
weapons" with a blanket. In addition, there was evidence that all
of this activity had occurred within a known drug area, that all
parties had been armed with pistols, that an unknown party had
arrived on the scene with money in his hand, and that Cruz had been
arrested with drugs and a substantial amount of cash on his person.
Assuming, as we must, the veracity of this evidence, the
jury was free to infer that the loaded "long weapons" had been
concealed within the garbage can as an added security measure.
There is nothing in the record to suggest that these firearms were
themselves for sale or that they served any purposes other than
increased protection and peace of mind. Accordingly, the jury
could have concluded that Cruz and Lugo had the power and intention
to retrieve the firearms if and when the upcoming drug transactions
turned sour; that is, the defendants constructively possessed the
machine guns in furtherance of the drug-trafficking scheme.
-23-
We acknowledge that the jury's inferences of guilt are
not inevitable and that the sufficiency questions are arguably
close. However,
an appellate court plays a very circumscribed
role in gauging the sufficiency of the
evidentiary foundation upon which a criminal
conviction rests. The court of appeals
neither weighs the credibility of the
witnesses nor attempts to assess whether the
prosecution succeeded in eliminating every
possible theory consistent with the
defendant's innocence.
United States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997) (citation
omitted). Instead, "[w]e defer, within reason, to inferences
formulated by the jury in the light of its collective understanding
of human behavior in the circumstances revealed by the evidence."
United States v. Passos-Paternina, 918 F.2d 979, 985 (1st Cir.
1990) (citations omitted). So too here.
III.
For the reasons stated above, we affirm the convictions
of both defendants.
-24-