United States Court of Appeals
For the First Circuit
No. 02-2571
UNITED STATES OF AMERICA,
Appellee,
v.
FRANKLYN LIRANZO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
Schwarzer,* Senior District Judge.
Dana A. Curhan for appellant.
Virginia M. Vander Jagt, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, was on
brief, for appellee.
September 30, 2004
*
Of the Northern District of California, sitting by
designation.
LYNCH, Circuit Judge. Franklyn Liranzo was a passenger
in a car stopped by Massachusetts state troopers in the fall of
2001. A Llama .380 semi-automatic handgun was found underneath
his seat. The troopers arrested all four occupants and asked them
to whom the gun belonged. All four denied ownership.
After jury trial, Liranzo was convicted of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
He challenges his conviction on the grounds that 1) the evidence at
trial was insufficient to establish Liranzo's constructive
possession of the firearm, and so the trial judge improperly denied
his motion for a judgment of acquittal, and 2) admission of
testimony by the arresting officers about their assignments to a
gang task force was prejudicial error. We affirm.
I.
We recount the facts with all reasonable inferences made
in favor of the verdict. See United States v. Hernández, 218 F.3d
58, 64 (1st Cir. 2000).
In the fall of 2001, Massachusetts State Police Troopers
Thomas McCarthy and Ernest Doherty, members of a police task force
targeting gang activity, kept watch on the home of a known gang
member on Farnham Street in Lawrence, Massachusetts. On September
4, 2001, at approximately 10:40 PM, the troopers saw a green Nissan
Maxima idling in front of the driveway of the residence. Two
people entered the Nissan and then, just as the troopers pulled
-2-
alongside the car, the Nissan quickly drove away with four
occupants inside. Troopers McCarthy and Doherty followed the
Nissan in an unmarked police car. They noticed that the Nissan's
rear license plate was only hanging by a single screw, and they
watched the Nissan go through an intersection with stop signs
without coming to a complete stop. They informed Sergeant Francis
Hughes, who was also in the general area in a separate unmarked
police car, that they intended to stop the green Nissan for those
violations. As McCarthy and Doherty caught up to the Nissan, they
observed the three passengers looking out the back window of the
car to watch the troopers' car.
The Nissan turned into Shawsheen Road, a well-lit road
next to a deserted park. The troopers' cruiser followed. McCarthy
activated the cruiser's emergency lights and the siren to get the
Nissan to pull over. After both cars stopped, the officers got out
of the car, but waited before they approached the Nissan. They
observed the occupants of the car moving around and looking back at
the troopers. Meanwhile, Hughes approached the stopped Nissan from
the opposite direction on Shawsheen Road. As Hughes stopped his
car to sandwich the Nissan between the two police cruisers, his
headlights illuminated the inside of the Nissan.
Hughes got out of his cruiser with a flashlight and
approached the Nissan from the front. Concerned that the driver of
the Nissan might attempt to run him down with the car, he carefully
-3-
observed the two front occupants of the car and paid particular
attention to their hands partly because "[h]ands are the things
that can produce weapons." The driver and Liranzo, the front
passenger, both were looking through the rear window in the
direction from which McCarthy and Doherty would be approaching.
They did not move around inside the car and there was no indication
that Liranzo knew Hughes was approaching from the front.
When Hughes was about eight feet from the Nissan, he
shined his flashlight into the interior of the car. At that
moment, Liranzo's head "snapped" around, his eyes widened, and he
made direct eye contact with Hughes for the first time. Hughes
testified:
As soon as [Liranzo] made eye contact with me,
I observed his front upper torso move forward.
At this point, his right shoulder was slightly
cocked back. At this point, the front of his
body came forward, his right shoulder came
forward, his head lowered and he made a
reaching movement underneath the seat. His
head was now slightly below the dashboard. I
could still see his eyes.
Liranzo's movement was "of great concern" to Hughes because
"[b]ased on [his] training and [his] experience in car stops, that
movement was consistent with a movement where [Liranzo] was either
reaching for something, to grab something or either get rid of
something."
In response to Liranzo's movement, Hughes yelled "at the
top of [his] lungs" for Liranzo and the other occupants of the car
-4-
to raise their hands. Liranzo and the three others complied and
raised their hands.
As the three officers approached the car, they smelled
burnt marijuana. Officer Doherty also saw several open beer
bottles. Of the four men in the car, only Liranzo protested the
stop and demanded to know why they had been pulled over.
The officers conducted pat-frisks of the occupants for
weapons and contraband. Marijuana was found in the pocket of one
of the occupants (not Liranzo). Hughes immediately went back to
the front passenger seat of the car to search the area into which
Liranzo had been reaching. He found a Llama .380 semi-automatic
handgun containing one bullet. The gun was propped up between the
seat and the floor at a 45-degree angle, leaning on a hump of
carpet and partly on the undercarriage of the front seat.
On October 21, 2001, a grand jury indicted Franklyn
Liranzo with one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1).1 During his jury trial,
Liranzo's defense focused on attacking the credibility of and
procedures used by the arresting officers. He did not testify.
The jury found him guilty. Liranzo was sentenced to 108 months
imprisonment, a three-year term of supervised release, and a
1
"It shall be unlawful for any person ... who has been
convicted in any court of, a crime punishable by imprisonment for
a term exceeding one year ... to ... possess in or affecting
commerce, any firearm or ammunition." 18 U.S.C. 922(g)(1).
-5-
special assessment of $100. Judgment was entered on November 25,
2002, and the defendant timely appealed.
II.
Liranzo argues that there was insufficient evidence to
prove beyond a reasonable doubt his constructive possession of the
handgun.2 Constructive possession for § 922(g) purposes does not
require ownership of the gun. See United States v. Meade, 110 F.3d
190, 202 (1st Cir. 1997). The evidence was sufficient.
First, Liranzo argues that in order to meet the burden,
the government must foreclose all reasonable alternative hypotheses
inconsistent with Liranzo's possession of the firearm. On the
facts, Liranzo posits that the evidence is consistent with multiple
theories: the gun could have been put there by one of the
passengers in the rear seat, or by the driver of the car, or even
have been left there before the car stopped. While Liranzo's
movement could have been a move to hide the gun, he argues that he
could also have been "attempting to retrieve the registration from
2
Section 922(g)(1) requires the government to prove that the
defendant was a convicted felon who knowingly possessed a firearm
in or affecting interstate commerce. United States v. Wight, 968
F.2d 1393, 1397 (1st Cir. 1992). Knowing possession under §
922(g)(1) may be proved through actual or constructive possession
of the firearm. Id. at 1398. Since Liranzo stipulated at trial
that he was a convicted felon and assumes, for purposes of the
present appeal, that the firearm in question traveled in interstate
commerce at some point, he is only challenging the sufficiency of
the evidence with respect to the element of constructive
possession.
-6-
the glove box, tying his shoe, scratching his leg, or any one of a
number of innocent behaviors."
This argument fails. As an initial matter, the legal
theory is incorrect: "[T]he government need not present evidence
that precludes every reasonable hypothesis inconsistent with guilt
in order to sustain a conviction. Rather, the jury is at liberty
to select freely among a variety of reasonable alternative
constructions of the evidence." United States v. Loder, 23 F.3d
586, 590 (1st Cir. 1994) (citations omitted). The reviewing court
"must uphold any verdict that is 'supported by a plausible
rendition of the record.'" Hernández, 218 F.3d at 64 (quoting
United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992)).
The evidence is sufficient to establish Liranzo's
constructive possession of the gun. The precarious, angled
position in which the gun was found negated any inference that the
gun was placed there before the Nissan came to a complete stop. As
officer Hughes testified, "[T]here is no way that gun would have
stayed in that location if the car was moving." Based on the
weight of the gun, its unusual 45-degree angle, and the fact that
it was "supported almost by the three prongs of the handgun against
the carpet," Hughes concluded that "the gun would have slid out if
the car was moving." Hughes also testified that he did not observe
any movements from the driver of the Nissan as he approached the
car from the front, negating any inference that the driver placed
-7-
the gun underneath Liranzo's seat. As for the possibility that the
gun was placed there by the passengers in the back, Hughes
testified that it would have been impossible for someone in the
backseat to press the gun into that position due to the "small bowl
[formed by the raised carpet] directly underneath the seat" and the
wires and other pieces of the undercarriage that were in the way.
Hughes noted, "[T]here is no way the gun would have made it over
that hump and still have been balanced on the undercarriage like
that from the back. It just couldn't have happened." The
possibility that Liranzo's reaching movement was to tie his shoe or
to get his registration cannot be squared with the testimony that
Liranzo maintained eye contact with Hughes throughout the entire
sequence of his movements.
It is not the role of the reviewing court to "weigh the
evidence; [our role is] merely to ensure that some evidence exists
to support sufficiently the jury's determination." United States
v. Nieves-Burgos, 62 F.3d 431, 438 (1st Cir. 1995). Since the jury
heard evidence that the gun must have been placed in its final
position after the Nissan came to a complete stop, and that none of
the other occupants in the car could have put it there, the jury
could have inferred that Liranzo's reaching movement was not
innocent, but a move to put the gun under the seat.
Liranzo also correctly notes that "mere proximity to a
weapon is not sufficient to show actual or constructive
-8-
possession." United States v. Weems, 322 F.3d 18, 24 (1st Cir.
2003). In support of his argument he should have been acquitted
because nothing more than "mere proximity" was shown here, Liranzo
cites a set of cases from other circuits whose facts are easily
distinguishable. See, e.g., United States v. Soto, 779 F.2d 558,
560-61 (9th Cir. 1986), opinion amended by 793 F.2d 217 (9th Cir.
1986) (insufficient evidence to establish possession where weapons
were found in the van in which defendant was a passenger for only
10 minutes, the weapons were accessible by defendant as well as the
driver and another passenger, driver testified that he owned the
weapons and that defendant did not know about them before getting
in the van, and government presented no other evidence that
defendant was connected to the weapons); United States v. Blue, 957
F.2d 106 (4th Cir. 1992) (insufficient evidence to establish
constructive possession where government's only evidence was that
police officer testified that he saw defendant's shoulder dip as he
approached vehicle and weapon was found under his seat, but no
fingerprints or other evidence linking defendant with gun were
produced). Liranzo also points out a host of supposed lacunae in
the evidentiary record: there was no evidence that he was the
registered owner of the car or its driver; there was no physical
evidence such as fingerprints; there was no evidence that the
defendant had ever been seen with the weapon or any weapon at all.
-9-
There was much more than "mere proximity" here. As the
earlier discussion demonstrates, the evidence showed that Liranzo
exercised exclusive dominion and control over the location of the
gun. See United States v. Zavala-Maldonado, 23 F.3d 4, 7 (1st Cir.
1994) ("'Constructive' possession is commonly defined as the power
and intention to exercise control, or dominion and control, over an
object not in one's 'actual' possession."). This renders the "no
other evidence" argument irrelevant. The fact that the government
did not present certain kinds of evidence does not mean that there
was insufficient evidence for conviction. In our review, we look
at "the total evidence, with all reasonable inferences made in the
light most favorable to the government." Hernández, 218 F.3d at 64
(emphasis added) (quoting Loder, 23 F.3d at 590).
III.
Liranzo also argues that the trial court erred by
allowing the arresting officers to testify about their assignments
in the gang task force, thereby causing prejudice to Liranzo.
There was no error.
Liranzo moved in limine before trial to exclude
references to the terms "gang" and "gang unit" from the officers'
testimony. The trial judge denied the motion after a hearing.
Since Liranzo had indicated that his defense would attack the
credibility of the arresting officers and the police practices and
procedures used in this case, the trial judge concluded that
-10-
evidence of the officers' assignments to the gang task force was
relevant to explain to the jury the appearance of "excessive police
presence for people who essentially have traffic stops."
Furthermore, the judge explained that the jury could perceive this
car stop as an incident of racial profiling. The judge held the
evidence was relevant so the government could demonstrate that
"these people weren't stopped because of their race, but because
these officers are there for the particular responsibility ... [of]
watching the house [of the known gang member on Farnham Street]."
The government told the jury in its opening statement
that "this case is nothing about gangs" and that "[t]he only
importance of what [the officers] were doing and where they were is
for you to understand that this was not a [routine] car stop."
Before any of the officers testified, the trial judge gave the
following limiting instruction to the jury:
I am allowing these officers to testify as to
their duties, because those were their duties
according to them, and so ... this testimony
about what their assignment was at the time of
the incident in question is given solely to
provide to you background and context.
The government does not claim in this
case that the defendant is in a gang or that
he was involved in any gang activities at the
time of the event in question in this case.
And so for that reason, the fact that
witnesses may testify they were members of the
gang task force and/or that they were
investigating gang related activities has no
bearing on whether you find the defendant
guilty or not guilty of the offense with which
he has been charged.
-11-
During trial, the officers testified that they were
assigned to the "Suffolk County Gang Unit," whose responsibility is
to "investigate gang-related crimes." They "patrol the greater
Lawrence area to seek out gang-related issues, gang-related crime."
The officers paid particular attention to the Farnham Street house
because it was the house of a "known gang member of the outlaw gang
... based out of South Lawrence." They drive by that area "at
least twice, maybe three times a week, normal patrol" and during
the last five years have "gone by, driven by, and observed [the]
activity of ... the residence[] ... probably a couple hundred
times." During trial, Liranzo lodged repeated objections to such
references to the officers' assignments and activities at the
Farnham Street home and thus preserved his objections for appeal.
Liranzo contends on appeal that all evidence regarding
the officers' posts in the police gang task force and the gang
activity at the home on Farnham Street should have been excluded as
irrelevant and prejudicial to Liranzo. Specifically, Liranzo
argues that admission of the evidence was error because 1) the
evidence failed to establish that he was in a gang, 2) any alleged
gang affiliation had no bearing on his case, and 3) the admission
of the evidence prejudiced his defense and changed the outcome of
a close case.
Our review is for abuse of discretion. Under Federal
Rule of Evidence 403, relevant "evidence may be excluded if its
-12-
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury." The
process of balancing the probative value of evidence with the risk
of unfair prejudice is committed to the sound discretion of the
trial court. United States v. Fields, 871 F.2d 188, 196 (1st Cir.
1989). "[O]nly in 'extraordinarily compelling circumstances' will
we reverse a district court's 'on-the-spot judgment' concerning the
probative value and unfair effect of the proffered evidence."
United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998) (quoting
United States v. Lewis, 40 F.3d 1325, 1339 (1st Cir. 1994)). This
standard is not met here.
Liranzo's first argument fails because the evidence was
not admitted to show his gang membership and the limiting
instruction made that clear.
Second, the evidence regarding the gang task force and
the surveillance of the Farnham Street home was, for the reasons
stated by the trial judge, relevant.
Furthermore, the district court's concern for the risk of
the jury's perception of racial profiling was validated by what
occurred before and at trial. Much of the voir dire questioning
focused on potential juror bias against the defendant as a "black
Hispanic" man. The voir dire thus caused the jury to be extra
sensitive to the race of the defendant and led to one prospective
juror telling the trial judge, "I am not comfortable with a11 of my
-13-
white peers judging a black person." The opening statement of the
defendant stressed that all of the occupants of the Nissan were
Hispanic and that the stop occurred in "a Hispanic neighborhood
with many other Hispanic people." The trial judge thus had reason
to believe that the testimony regarding the officers' gang-related
assignments and the surveillance history of Farnham Street would be
relevant in giving the jury the necessary background to understand
the police procedures and their reactions so as to counter any
impression of racial profiling.
Finally, any risk of unfair prejudice is limited by the
court's instructions to the jury and the government's explanation
of the role played by the officers' testimony. See United States
v. Taylor, 284 F.3d 95, 104 (1st Cir. 2002) (district court's
cautionary instruction to jury that "Defendants are not charged
with possessing a firearm or a gun" addressed any risk of
unwarranted inferences by jury from evidence that defendant
possessed a gun); Shea, 159 F.3d at 40 (1st Cir. 1998) (district
court's cautionary limiting instruction to jury minimized potential
prejudice to defendant from admission of a gun used in a separate
robbery and such admission was not abuse of discretion).
IV.
For the foregoing reasons, we affirm Liranzo's conviction
for being a felon in possession of a firearm. So ordered.
-14-