United States Court of Appeals
For the First Circuit
No. 04-2674
UNITED STATES OF AMERICA,
Appellee,
v.
NESTOR MALDONADO-GARCÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Juan J. Hernández López de Victoria, by appointment of the
court, for appellant.
Nestor Maldonado-García on supplemental brief, pro se ipso.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom H. S. Garcia, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney (Senior Appellate Attorney),
were on brief, for appellee.
May 5, 2006
SELYA, Circuit Judge. This case involves drug
trafficking and related gun possession. After a second full trial
— the first resulted in a hung jury — defendant-appellant Nestor
Maldonado-García was found guilty on one count of possession of
marijuana with intent to distribute and two related firearms
counts. In this venue, the appellant's counselled brief advances
two assignments of error. First, the brief asseverates that the
government's evidence was insufficient to establish that the
appellant knowingly possessed the firearm found in the truck he was
driving. Second, the brief calumnizes the trial court's exclusion
of testimonial evidence pertaining to the violent death of a prior
lessee of the truck. Counsel pressed both points vigorously at
oral argument.1 The appellant also has filed a pro se supplemental
brief, in which he raises a golconda of other arguments. Finding
all of these arguments unpersuasive, we affirm the judgment below.
We rehearse the facts in the light most hospitable to the
verdict, consistent with record support. United States v. Vega
Molina, 407 F.3d 511, 516 (1st Cir. 2005).
In late July of 2003, California-based employees of a
shipping company, Caribbean Transport Services (CTS), became
suspicious of a shipment addressed to LL Industries in Aguadilla,
1
The appellant's counselled brief also asserted a challenge
with respect to the chain of custody of the seized drugs.
Appellant's counsel explicitly abandoned this challenge during oral
argument, however, and we make no further mention of it.
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Puerto Rico.2 CTS immediately notified the Drug Enforcement
Administration (DEA). After performing field tests, DEA agents
confirmed that the suspect crates contained bundles of marijuana.
With the assistance of CTS staffers, the agents returned the
bundles of marijuana to the crates in which they had been packed
and allowed the shipment to go forward. At the DEA's bidding,
however, the shipment was rerouted from Aguadilla to San Juan.
The crates reached San Juan on July 28, 2003. The DEA
arranged for surveillance upon their arrival. That evening, an
unidentified male caller telephoned CTS several times, inquiring
about the shipment and the associated freight charges. Shortly
after a CTS representative told the caller that the shipment was in
house, the appellant arrived at the CTS facility in a Ford dump
truck. He presented a copy of the shipping invoice for the crates,
paid the outstanding freight charges with money orders drawn in the
exact amount, and used an alias when endorsing the money orders.
After CTS employees loaded the crates onto the truck, the
appellant climbed into the driver's seat and began to depart. At
that point, DEA agents blocked his only means of egress. In
addition, a DEA agent, Rafael Mattai, pursued the truck on foot.
Seeing the roadblock, the appellant veered in an apparent attempt
2
Subsequent investigation revealed both that LL Industries was
a nonexistent firm and that the shipment sported a bogus address.
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to evade the agents. The attempt failed, and the appellant brought
the truck to a halt.
DEA agents converged on the truck and arrested the
appellant. As the agents were handcuffing him, Fano Samuel Cruz
Santiago (Cruz), a local police officer assigned to work with the
DEA, saw a .357 Magnum revolver on the floor of the cab, near the
truck's stick-shift. Cruz testified that the firearm was easily
accessible from the driver's seat, within the driver's immediate
reach, and in plain view. After completing the arrest, the agents
seized the drugs, the gun, and the truck.
In the days following the arrest, the DEA returned the
truck to its owner, Wender Rentas. Rentas testified at trial that
he was the appellant's employer; that he regularly lent his truck
to the appellant without any special formality; and that the
appellant had ready access to the truck. Rentas further testified
that, on July 28, the truck was parked at his house. The appellant
drove there that afternoon (sometime after 4:00 p.m.) to return
another vehicle. The inference was compelling that the appellant
commandeered the truck at around that time. In all events, the
appellant arrived at the CTS facility sometime after 7:30 p.m. that
evening, operating the dump truck.
A federal grand jury indicted the appellant. The three-
count indictment charged possession of 234 kilograms of marijuana
with intent to distribute (count 1); possession of a firearm during
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the commission of a drug-trafficking crime (count 2); and
possession of a firearm having an obliterated serial number (count
3).3 See 21 U.S.C. § 841; 18 U.S.C. § 924(c)(1)(A); id. § 922(k).
Counts 2 and 3 each contained a scienter element (knowing
possession).
After hearing all the evidence, the jury deadlocked. The
district court declared a mistrial. A retrial ensued. At the
close of the government's case in chief, the appellant moved for
judgment of acquittal. See Fed. R. Crim. P. 29(a). The district
court denied the motion. The appellant did not renew the motion at
the end of the his case. See id. The court submitted all three
counts to the jury, which returned a guilty verdict across the
board. The appellant again failed to renew his motion for judgment
of acquittal within the seven days following the verdict. See Fed.
R. Crim. P. 29(c)(1). The district court imposed a 123-month
incarcerative sentence. This timely appeal followed.
The gravamen of the appellant's first claim of error is
that the government's proof regarding the presence of the gun in
the cab of the truck was insufficient to establish an element of
the offenses of conviction — knowing possession — beyond a
reasonable doubt and that, therefore, the firearms convictions
should be reversed. This claim suffers from a self-inflicted
3
The appellant concedes that the serial number of the gun had
been obliterated and that the gun had traveled in interstate
commerce.
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wound: the appellant failed to renew his Rule 29 motion either at
the close of all the evidence or following the jury verdict. See
Fed. R. Crim. P. 29. These omissions combine to constitute a
waiver of the appellant's earlier Rule 29 motion. See United
States v. Hadfield, 918 F.2d 987, 996 (1st Cir. 1990).
Consequently, our review, if not entirely foreclosed,4 is limited
to clear and gross injustice. See id. We discern none here.
In reviewing a challenge to evidentiary sufficiency, we
consider the evidence in the light most congenial to the verdict
and determine whether this body of proof as a whole, including all
reasonable inferences extractable therefrom, has sufficient bite to
ground a rational conclusion that the government proved each and
all of the elements of the charged crime beyond a reasonable doubt.
United States v. Lara, 181 F.3d 183, 200 (1st Cir. 1999). In that
exercise, we may neither evaluate the credibility of the witnesses
nor weigh the relative merit of theories of innocence postulated by
4
In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 126 S.
Ct. 980 (2006), the Supreme Court held that a litigant's failure to
renew its motion for judgment as a matter of law under Fed. R. Civ.
P. 50(b) following the return of an adverse jury verdict both
"forecloses its challenge to the sufficiency of the evidence" on
appeal, id. at 987, and leaves the court of appeals "powerless" to
order the relief provided in the rule, id. at 988. The Unitherm
dissenters suggest that this holding establishes that courts of
appeals lack subject-matter jurisdiction over unrenewed sufficiency
challenges in civil cases. See id. at 989-990 (Stevens, J.,
dissenting). There are legitimate questions as to whether the
Unitherm holding is jurisdictional and, in any event, whether it
applies to motions under Fed. R. Crim. P. 29. Given the abundance
of evidence here, see text infra, we decline to address those
nuanced questions.
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the defendant. United States v. Woodward, 149 F.3d 46, 56 (1st
Cir. 1998). We apply that standard here.
With respect to the firearms offenses — the appellant
wisely does not attempt to challenge the sufficiency of the
evidence on the drug-trafficking count — it is important to
remember that the term "possession" encompasses not only actual
possession but also constructive possession. United States v.
Vargas, 945 F.2d 426, 428 (1st Cir. 1991). Constructive possession
of an object exists when a person knowingly has the power at a
particular time to exercise dominion and control over it. See
United States v. Staula, 80 F.3d 596, 605 (1st Cir. 1996); United
States v. Ocampo-Guarin, 968 F.2d 1406, 1409 (1st Cir. 1992).
Thus, constructive possession of a firearm may be established by
showing that the person knows (or has reason to know) that the
firearm is within easy reach, so that he can take actual possession
of it virtually at will. United States v. Lamare, 711 F.2d 3, 5-6
(1st Cir. 1983).
The evidence adduced in this case was sufficient to
permit a rational juror to conclude beyond a reasonable doubt that
the appellant constructively possessed the gun found in the truck.
After all, the evidence supported a finding that the appellant had
sole possession of the truck for some appreciable period of time
during the late afternoon and evening of July 28; that he was the
lone occupant of the vehicle throughout that interval; that the
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revolver was located in the stick-shift area of the truck's cab,
with the handle facing toward the driver's seat; that it was within
easy reach of the driver (the appellant); and that it was in plain
sight. This testimony, if credited, sufficed to show constructive
possession — and the jury had the right to credit it. See, e.g.,
United States v. O'Brien, 14 F.3d 703, 707 (1st Cir. 1994).
If more is needed — and we doubt that it is — direct
testimony may be buttressed by inferences that reasonably can be
drawn from the totality of the circumstances. See Staula, 80 F.3d
at 605. Here, those inculpatory circumstances included the
appellant's knowing participation in the retrieval of a large cargo
of drugs,5 the concomitant need for protection, and testimony that
drug traffickers often guard their merchandise with firearms. No
more was exigible.
To say more on this point would be superergatory. The
bottom line is that we detect no injustice — let alone a clear and
gross injustice — in firearms convictions hinged upon a finding
that the appellant knowingly possessed the gun.
This brings us to the evidentiary issue. A district
court's decision to admit or exclude evidence is ordinarily
reviewed for abuse of discretion. United States v. Flemmi, 402
5
Given the evidence of the money orders, the use of an alias,
and the appellant's attempt to evade arrest, the jury had ample
reason to conclude that the appellant's involvement with the drugs
was far from innocent.
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F.3d 79, 86 (1st Cir. 2005); United States v. Pitrone, 115 F.3d 1,
7 (1st Cir. 1997). As part of this discretion, district courts
enjoy wide latitude in passing upon the relevancy of evidence.
United States v. Norton, 26 F.3d 240, 243 (1st Cir. 1994).
Relevant evidence "means evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." Fed. R. Evid. 401.
The appellant asserts that the district court abused its
discretion in excluding testimony anent the violent death of an
individual who rented the Ford dump truck on the Friday and
Saturday prior to his (the appellant's) use of the truck on Monday,
July 28. He strives to persuade us that the district court should
have honored his proffer6 because this evidence makes it more
likely that someone else (i.e., the prior lessee) placed the gun in
the truck and, thus, that the appellant did not know the gun was
there. We are not convinced.
There are two major problems with the appellant's
position. The first problem is that the appellant offered no
evidence that the prior lessee owned a gun, carried a gun, was
observed with a gun, or used a gun at any time. The second and
6
In his counselled brief, the appellant attempts to embellish
upon this evidence, suggesting, for example, that the prior lessee
was involved in some unspecified drug-trafficking activities. The
transcript belies these embellishments; the only evidence actually
proffered below was evidence of the prior lessee's violent death.
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perhaps more salient problem is that the proffered testimony had no
bearing on the key issue in the case: whether the appellant knew
that the gun was in the truck and constructively possessed it at
the time he retrieved the drugs. On this record, the fact that
someone else may have placed the gun in the truck would not alter,
or even cast doubt upon, the appellant's constructive possession of
it. See Lamare, 711 F.2d at 5-6.
At the expense of carting coal to Newcastle, we add that,
in this instance, the district court afforded the appellant an
ample opportunity to develop his theory of the case. The court
allowed him to submit evidence that someone else had rented and
driven the truck on the weekend preceding the date of arrest. The
court merely drew a line at that point and refused, on relevancy
grounds, to admit the further evidence of the prior lessee's
violent death (unconnected to his use of the truck). Even
assuming, for argument's sake, that this evidence had some slight
bearing on the issue of constructive possession, it is too much of
a stretch to say that the district court abused its discretion in
excluding the proffer.
The appellant's supplemental brief need not occupy us for
long. In it, he advances three contentions. None has merit.
First, the appellant's reliance on the decision in Bailey
v. United States, 516 U.S. 137 (1995), is mislaid. Bailey held
that a statute criminalizing the "use" of a firearm during a drug-
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trafficking crime required a showing of the defendant's "active
employment" of the firearm. Id. (emphasis in original). But the
relevant portion of that statute, 18 U.S.C. § 924(c), has been
amended in response to the Bailey decision to embrace simple
possession in furtherance of a drug-trafficking crime. See United
States v. Pagan-Ortega, 372 F.3d 22, 30 n.4 (1st Cir. 2004)
(discussing this revision). Thus, unlike the version of the
statute at issue in Bailey, the new version, which underlies the
relevant count of conviction here (count 2), criminalizes the mere
possession of a firearm in furtherance of drug-trafficking
activity. See 18 U.S.C. § 924(c)(1)(A). It is not a "use"
statute.
The appellant's second claim — that his sentence was
flawed by reason of constitutional infirmities in the federal
sentencing guidelines — is baseless. See Booker v. United States,
543 U.S. 220, 245-46 (2005); United States v. Antonakopoulos, 399
F.3d 68, 79 (1st Cir. 2005). Third, and finally, the appellant's
ineffective assistance of counsel claim, weak in all events, cannot
be raised for the first time on direct appeal. See United States
v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) ("We have held with a
regularity bordering on the monotonous that fact-specific claims of
ineffective assistance cannot make their debut on direct review of
criminal convictions, but, rather, must originally be presented to,
and acted upon by, the trial court.").
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We need go no further. For the reasons elucidated above,
we conclude that, for aught that appears, the appellant was fairly
tried, justly convicted, and lawfully sentenced.
Affirmed.
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