United States Court of Appeals
For the First Circuit
No. 09-2269
UNITED STATES OF AMERICA,
Appellee,
v.
ALEXIS ALVERIO-MELÉNDEZ,
Defendant, Appellant.
No. 09-2277
UNITED STATES OF AMERICA,
Appellee,
v.
ARMANDO GÓMEZ-ORTIZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Raymond L. Sánchez-Maceira, for appellant Alverio.
Antonio Bauzá-Torres, with whom Rubén Morales, were on brief
for appellant Gómez.
Mariana Bauzá, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and Julia M. Meconiates, Assistant United States Attorney, were on
brief for appellee.
April 1, 2011
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TORRUELLA, Circuit Judge. Alexis Alverio-Meléndez
("Alverio") and Armando Gómez-Ortiz ("Gómez") challenge their
convictions for (1) conspiracy to possess with intent to distribute
cocaine and (2) aiding and abetting in the possession of a firearm
in furtherance of a drug trafficking crime. Gómez argues that the
evidence was insufficient to convict him on either count; Alverio
challenges the sufficiency of the evidence against him on the
firearm count. Gómez also contends that the government committed
a Brady violation, and both defendants argue that the district
court erred in instructing the jury as to the firearm count. For
the reasons below, we affirm both convictions.
I. Background1
Rafael Rodríguez-Morales ("Rodríguez"), a paid
confidential informant and one of the government's key witnesses at
trial, first met Alverio in approximately 2004. At that time, one
of Rodríguez's co-workers set up a meeting between Rodríguez and
Alverio because the co-worker wanted Rodríguez to re-enter the drug
trafficking business. Gómez also attended the meeting, which was
at Rodríguez's mother's house. Rodríguez did not find out Gómez's
real name at that meeting, but learned that his nickname was
"Flaco" or "El Flaco" (i.e., "the skinny one"). During the
1
We recite the facts in the light most favorable to the verdict
because the defendants challenge the sufficiency of the evidence.
See United States v. García-Álvarez, 541 F.3d 8, 11 (1st Cir.
2008).
-3-
meeting, Gómez spoke to Rodríguez about cocaine prices. Alverio
said nothing about prices and instead, according to Rodríguez's
testimony at trial, "look[ed] at El Flaco, the one that would
dictate the drug prices."
Approximately one and a half years later, Alverio started
calling Rodríguez and offering to sell him cocaine. Rodríguez, who
was by then an informant for the DEA, contacted the DEA but did not
receive authorization to proceed with a drug transaction.
In January 2009, Alverio again called Rodríguez. This
time, the DEA authorized Rodríguez to proceed and worked with him
to record two conversations between him and Alverio. On
January 29, 2009, Alverio said, among other things, that he would
contact Rodríguez as soon as he had drugs. On February 4, 2009,
Rodríguez spoke to Alverio about purchasing six "eighths" (i.e.,
eighths of a kilogram) of cocaine. The two men agreed to meet at
ten o'clock the next day. Alverio said he was going to call a
friend in order for the friend to give him the cocaine. Rodríguez
asked if "the man," or the owner of the drugs, could reduce the
price by one or two hundred dollars. Later in the conversation,
Rodríguez asked Alverio if the drugs belonged to the skinny man to
whom Alverio had introduced Rodríguez, and Alverio responded that
they did.
On February 5, 2009, Rodríguez called Alverio to confirm
that they were ready for the drug transaction. When Alverio
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arrived at the K-Mart in Fajardo, Puerto Rico, the appointed
meeting place, he called Rodríguez, who was inside the store at
that point. Alverio guided Rodríguez to the spot where his car was
parked, and Rodríguez noticed that there was another man in
Alverio's car. When Rodríguez asked Alverio if the second man was
"El Flaco," Alverio said that he was. Alverio also said, in
response to a question from Rodríguez, that the other man was the
owner of the drugs.
When the time came to verify the drugs, Alverio asked
Rodríguez if they could move to Rodríguez's car. Rodríguez replied
that his car was far away and asked to verify the drugs in
Alverio's car. Alverio said that the other man in the car did not
want Rodríguez to verify the drugs in the car. When Rodríguez
asked again if the second man was the owner of the drugs, Alverio
replied affirmatively. Before visually verifying the drugs in
Alverio's car, Rodríguez attempted to say hello to Gómez. Several
seconds passed before Gómez responded, but when Rodríguez asked
Gómez if Gómez remembered him, Gómez said that he did. According
to Rodríguez's testimony at trial, Gómez was sitting sideways in
the passenger seat of the car with his right hand near his thigh,
giving Rodríguez the impression that there was a firearm in the
car.
After greeting Gómez, Rodríguez opened a small package,
which Alverio had placed in the middle of the car's rear seat, that
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looked like a child's lunch box. The substance inside smelled like
cocaine. Rodríguez then said that the air seemed charged and
suggested that they move to another location, Monte Brisas. The
defendants agreed that they should go to Monte Brisas and proceeded
to pull away. Rodríguez, who had one leg inside the car and the
other outside, was able to get out before the car departed. Once
out of the car, Rodríguez reported to a DEA official that he felt
his life was in danger because there were firearms in the car, and
said that the defendants took the cocaine away in their vehicle.
As the defendants drove toward Monte Brisas, they were
stopped by a marked police vehicle. DEA Special Agent Jimmy
Alverio ("Agent Alverio"), who had been conducting surveillance in
the K-Mart parking lot and who had followed the defendants toward
Monte Brisas, assisted. From the driver's side of the car, Agent
Alverio noticed a gun with an extended magazine in the passenger
door "pocket." A firearm examiner later tested the weapon, a Glock
.40 caliber pistol, and discovered that it was capable of firing
automatically. Agent Alverio also saw, and later opened, the lunch
box in the back seat, which a chemist subsequently determined
contained just under three-fourths of a kilogram of 70.7% pure
cocaine.
When law enforcement officers arrested Gómez and Alverio,
they seized a green fanny pack that Gómez was wearing. The fanny
pack contained, among other things, three .40 caliber bullets, a
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magazine that contained fifteen .40 caliber bullets, a slide back
cover for a Glock, a drug ledger, and nine vials of crack cocaine.
Officers also seized cellular phones from Alverio and Gómez and
learned the number of the phone that Gómez was carrying.2 By
analyzing toll records, DEA Agent Álvaro Agreló learned that on at
least two occasions, immediately after Rodríguez spoke with
Alverio, Alverio's phone was used to dial the phone that Gómez had
with him on the day of the arrest.
II. Discussion
A. The Sufficiency of the Evidence
We review de novo whether the evidence presented at trial
is sufficient to support a conviction. United States v. Rosado-
Pérez, 605 F.3d 48, 52 (1st Cir. 2010). In doing so, "[w]e take
the evidence and draw all reasonable inferences in the light most
favorable to the prosecution." Id. We will affirm "[i]f a
reasonable jury could find the defendants guilty beyond a
reasonable doubt of all elements of the charged offense." Id.
1. Gómez's Drug Conviction
Gómez argues that the evidence was insufficient to
support his conviction for conspiracy to possess with intent to
distribute cocaine. Gómez notes that Alverio, not he, spoke to and
negotiated with Rodríguez, and that he was never seen handling the
2
They were already aware of the number of the phone that Alverio
used because Alverio had called Rodríguez on that phone.
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drugs. In addition, Gómez contends that because the government did
not perform any fingerprint analysis on the lunch box containing
the drugs, it is unclear whether or not he owned the drugs.
Furthermore, Gómez points out that no government agent could
corroborate Rodríguez's testimony that Alverio identified Gómez as
the owner of the drugs on the day of the arrest. Gómez suggests
that Rodríguez's testimony alone is insufficient to sustain his
conviction because Rodríguez, who has been convicted of homicide
and various other crimes, is not a credible witness.
In order to sustain a conviction for conspiracy under 21
U.S.C. § 846, the evidence must show that (1) a conspiracy existed,
(2) the defendant had knowledge of the conspiracy, and (3) the
defendant knowingly and voluntarily participated in the conspiracy.
United States v. Pomales-Lebrón, 513 F.3d 262, 267 (1st Cir. 2008).
To prove the underlying offense of possession with intent to
distribute, see 21 U.S.C. § 841(a)(1), the government must
establish that a defendant "knowingly and intentionally possessed,
either actually or constructively, a controlled substance with the
specific intent to distribute." United States v. García-
Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007). In light of these
standards, we conclude that the government presented sufficient
evidence for a rational trier of fact to find Gómez guilty.
The government provided abundant evidence that Gómez
provided the drugs for the transaction and was not merely an
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unlucky bystander. First, Rodríguez testified at trial that Gómez
was present when he first met with Alverio at his mother's house to
discuss re-entering the drug business, and that Gómez, whom
Rodríguez knew as "El Flaco," was the person who told him about
prices while Alverio looked on silently. In addition, the
government played a recording of a conversation between Alverio and
Rodríguez from February 4, 2009, during which Rodríguez asked if
the drugs he was going to buy belonged to "the skinny guy" whom he
had met at his mother's house, and Alverio responded affirmatively.
Furthermore, toll records showed that after Alverio spoke
with Rodríguez on February 4, the same phone that Alverio had used
to speak with Rodríguez was used to dial a cell phone number that
corresponded to the cell phone that Gómez had on the day of the
arrest. Given Alverio's comment during the recorded phone call
that he was going to call the friend who had the cocaine, the fact
that his phone was used to call Gómez's phone provides particularly
strong support for the conclusion that Gómez was the source of the
drugs. A second phone call from Alverio's phone to Gómez's phone,
placed immediately after Rodríguez called Alverio on the morning of
February 5th, also supports the government's theory.3
3
Gómez argues that Agent Agreló's testimony explaining the toll
records was impermissible "overview" testimony and should not be
considered when analyzing whether the evidence was sufficient to
support the verdict. This argument, which Gómez presents in one
sentence in his brief, has been waived because it has not been
sufficiently developed. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990).
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In addition, Rodríguez testified at trial that Alverio
said on the day of the drug transaction that the man with him in
the car was the owner of the drugs. Rodríguez also noted that
Gómez, after some delay, acknowledged that he remembered Rodríguez,
which supports the government's theory that the man in the car was
the same man that Rodríguez met initially at his mother's house.
Moreover, the very fact that Gómez was in the car when
the drug transaction took place provides support for the
government's theory that he was a coconspirator. As Agent Alverio
testified, it is not common for drug traffickers to bring innocent
people to drug transactions. Of course, however, "mere presence at
the scene of conspiracy activities or simple association with
conspirators is not enough, standing alone, to establish
participation in a conspiracy." United States v. Rodríguez-Ortiz,
455 F.3d 18, 23 (1st Cir. 2006).
Finally, Gómez's argument that the evidence against him
was insufficient because Rodríguez was not a credible witness is
meritless. "It is not for us to make credibility determinations in
the course of a review of the sufficiency of the evidence." United
States v. Morales-Machuca, 546 F.3d 13, 21 (1st Cir. 2008). "A
conviction may be based solely on the uncorroborated testimony of
a confidential informant so long as the testimony is not incredible
or insubstantial on its face." United States v. Gonzalez-Vazquez,
219 F.3d 37, 46 (1st Cir. 2000) (internal quotation marks omitted).
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Here, Rodríguez's testimony is not "incredible or insubstantial on
its face," nor is it entirely uncorroborated. Toll records and
recordings of phone conversations support his version of events.
For all these reasons, the evidence was sufficient to
enable a rational factfinder to convict Gómez on the drug count.
2. Gómez's Firearm Conviction
Gómez argues that the evidence was insufficient to
support his firearm conviction. In order to convict a defendant of
possessing a firearm during and in relation to a drug trafficking
crime under 18 U.S.C. § 924(c)(1)(A), "the government must prove
that the defendant[] 1) committed a drug trafficking crime; 2)
knowingly possessed a firearm; and 3) possessed the firearm in
furtherance of the drug trafficking crime." United States v. Pena,
586 F.3d 105, 112 (1st Cir. 2009).
As discussed above, there was sufficient evidence here to
support the conclusion that Gómez committed a drug trafficking
crime. In addition, the government presented sufficient evidence
that Gómez knowingly possessed a firearm. Agent Alverio testified
at trial that he saw a handgun in the "pocket" of the front
passenger door when the defendants were arrested, and that Gómez
was in the passenger's seat. Another government witness testified
that the fanny pack that Gómez was wearing when he was arrested
contained three .40 caliber bullets and a magazine containing
fifteen more .40 caliber bullets, both of which could be used to
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fire the gun, a Glock .40 caliber pistol, as well as a slide back
cover that "is the rear part of the Glock." Finally, Rodríguez
testified at trial that he thought Gómez had a gun based on the way
that Gómez was positioned. This evidence was sufficient for a
rational finder of fact to determine that Gómez knowingly possessed
the firearm.
Finally, as discussed in the following section, the
evidence was sufficient to support the conclusion that the
possession was in furtherance of the drug trafficking crime. Thus,
we will not disturb the verdict on Gómez's firearm count.
3. Alverio's Firearm Conviction
Citing 18 U.S.C. § 924(c)(1)(A), Alverio argues that the
government had to prove that he "1) committed a drug trafficking
crime; 2) knowingly possessed a firearm; and 3) possessed the
firearm in furtherance of the drug trafficking crime." He insists
that the "evidence was insufficient to convince a rational jury
beyond a reasonable doubt that [he] possessed the Glock 'in
furtherance of' a drug trafficking crime." He was indicted,
however, for aiding and abetting in the possession of a firearm in
furtherance of a drug trafficking offense, which requires proof
that he knew to a practical certainty that Gómez would possess the
gun in furtherance of a drug trafficking crime and that he took
some step to facilitate the possession. See, e.g., United States
v. Medina-Román, 376 F.3d 1, 6 (1st Cir. 2004). Consequently, we
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need only consider that part of his argument that also applies to
an aiding-and-abetting conviction -- namely, his claim that the
evidence was insufficient to sustain his firearm conviction because
the government failed to show that the possession of the firearm
was in furtherance of a drug trafficking crime. To support this
contention, Alverio points to Rodríguez's testimony at trial that
Alverio specifically told Rodríguez he did not want Rodríguez to
verify the drugs in his vehicle, that Alverio said Gómez did not
want the transaction to take place in Alverio's car, and that
Alverio proposed that they go to Rodríguez's car instead. If the
gun had been possessed in furtherance of the drug trafficking
crime, Alverio claims, Alverio and Gómez would not have wanted
Rodríguez to verify the drugs in his own car.
Alverio's argument is meritless because a gun need not be
present at the moment that drugs are verified, or at the moment
that money or drugs change hands, in order to be possessed in
furtherance of a drug trafficking crime. Possession of a firearm
"to protect drugs or sales proceeds" can constitute possession in
furtherance of a drug trafficking crime. United States v. Marin,
523 F.3d 24, 27 (1st Cir. 2008). Here, a rational factfinder could
conclude that Gómez had the gun to protect the cocaine on the way
to the transaction and the money that the defendants expected to
receive -- $3,300 for each of the six "eighths" -- on the way back
from the transaction. The evidence would have been sufficient to
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support the conclusion that the gun was possessed in furtherance of
the drug trafficking crime regardless of where the transaction
occurred. Thus, we will not overturn the verdict on Alverio's gun
count.
B. The Jury Instructions
Having concluded that the evidence was sufficient to
support both defendants' convictions, we must separately address
the claim of instructional error. See United States v. Baldyga,
233 F.3d 674, 682 n.8 (1st Cir. 2000) (noting that a court could
consistently conclude both that the evidence was sufficient to
support a verdict and that the jury instructions constituted
reversible error because of the different legal standards governing
the two claims).
The defendants contend that the district court's
instructions on the firearm count were flawed in three ways.
First, the court erred by instructing the jury on the meaning of
"us[ing] or carr[ying]" a firearm "during and in relation to" a
drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), when the
defendants were charged with "possess[ing] a firearm" "in
furtherance of" a drug trafficking crime, id. Second, the court
failed to instruct the jury that the mere presence of a firearm in
the area where a drug trafficking offense occurs is insufficient to
find a defendant guilty of possessing a firearm in furtherance of
a drug trafficking crime. Finally, the defendants allege that the
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court improperly coached the jury by incorporating details that
mirrored those of their own case into the jury instructions.
We review challenges to jury instructions for plain error
where, as here, the defendants failed to object at trial. United
States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008). Thus, we will
not disturb the convictions unless the defendants can prove "(1)
that an error occurred; (2) that the error was clear or obvious;
(3) that the error affected [their] substantial rights; and (4)
that the error also seriously impaired the fairness, integrity, or
public reputation of judicial proceedings." United States v.
Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009) (internal quotation marks
omitted); see also United States v. Olano, 507 U.S. 725, 732
(1993).4 "[P]lain error review tends to afford relief to
appellants only for 'blockbuster[]' errors." United States v.
Moran, 393 F.3d 1, 13 (1st Cir. 2004) (quoting United States v.
Griffin, 818 F.2d 97, 100 (1st Cir. 1987)); see also United States
v. Gomez, 255 F.3d 31, 37 (1st Cir. 2001) ("[T]he plain-error
4
The government raises the possibility that the district court
might have constructively amended the indictment when it instructed
the jury on using or carrying a firearm during and in relation to
a drug trafficking crime. We need not address this issue. Even if
the district court did constructively amend the indictment, the
defendants must still prove that prejudice resulted. See United
States v. Brandao, 539 F.3d 44, 62 (1st Cir. 2008) (holding that a
defendant who alleges constructive amendment of an indictment "must
make the required showing of prejudice under Olano and its
progeny"). For the reasons discussed below, they cannot do so.
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exception is cold comfort to most defendants pursuing claims of
instructional error.").
1. Background
The district court gave the following instructions
regarding the firearm count, referring throughout to the language
of 18 U.S.C. § 924(c)(1)(A) that addresses using and carrying a
firearm during and in relation to a drug trafficking crime:
The defendants are accused of using or
carrying a firearm during and in relation to a
drug trafficking crime. Basically, what that
means is that while they conspired to commit
the offence of possessing with intent to
distribute, they at the same time used or
carried a firearm.
. . . .
. . . You have to figure out from the
evidence you received here whether indeed
there was a gun here to begin with; and,
number two, whether this gun was possessed,
used, carried during the commission of a drug
trafficking offence.
So the following things have to be
proven. First, that the defendant that you're
considering indeed committed the first
offence, the possession, the conspiracy to
possess with intent to distribute narcotics,
cocaine in this case.
Number two, that during and in relation
to the commission of that crime, that
particular defendant knowingly used or carried
a firearm. . . .
To carry a firearm means -- or to carry
a firearm during and in relation to a drug
trafficking crime means to move or transport
the firearm on one's person or in a vehicle or
in a container during and in relation to the
crime. The firearm need not be immediately
accessible.
To use a firearm during and in relation
to a crime of this kind means to employ the
firearm actively, such as brandishing,
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displaying it, striking it, attempting to fire
it. In this case it's basically carrying it.
The firearm must have played some sort
of important role in the commission of the
offense, must have been intended by the
defendant to play an important role in the
commission of the offence. And the role could
have been protection, the role could have been
security, whatever it may be. Okay.
Neither defendant objected to these instructions.
2. Analysis
The government does not contest that the district court
erred by instructing the jury regarding "us[ing] or carr[ying]" a
firearm "during and in relation to" a drug trafficking crime rather
than instructing it on "possess[ing] a firearm" "in furtherance of"
a drug trafficking crime. 18 U.S.C. § 924(c)(1)(A). The
government argues, however, and we agree, that there was no
reversible error here.
Instructing the jury regarding "use and carry" instead of
"possession" was not reversible error because "use and carry"
necessarily includes possession. A person cannot "use" a firearm
without possessing it. See Pena, 586 F.3d at 114 ("[E]ven if the
jury thought it had to find 'use[]' [instead of 'possession,'] that
would have been a benefit not a detriment to [the defendant].").
One also cannot "carry" a firearm without possessing it. See
United States v. Gill, 513 F.3d 836, 851 (8th Cir. 2008).
In addition, the instructions on "use" of a firearm
"during and in relation to" a drug trafficking crime did not
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constitute reversible error. "[W]e have understood 'in furtherance
of' to demand showing a sufficient nexus between the firearm and
the drug crime such that the firearm advances or promotes the drug
crime. For example, we have held that possession of a firearm to
protect drugs or sales proceeds can establish such a nexus."
Marin, 523 F.3d at 27 (internal citations omitted). Here, the
court noted that "the firearm must have played some sort of
important role in the commission of the offense, must have been
intended by the defendant to play an important role in the
commission of the offence," and specifically gave the example cited
in Marin, see id., when explaining that "the role could have been
protection, the role could have been security, whatever it may be."
This circuit has noted before that "the 'in furtherance
of' element of a firearm possession charge imposes a 'slightly
higher standard' of liability than the nexus element corresponding
to the different charges of using or carrying a firearm, which need
only occur 'during and in relation to' the underlying crime."
United States v. Delgado-Hernandez, 420 F.3d 16, 25 (1st Cir. 2005)
(quoting H.R. Rep. No. 105-344, at 11 (1997)). We are not
suggesting otherwise here. We cannot see, however, how the jury
could have concluded that the firearm here played an important role
in the commission of the offense without concluding that the weapon
met the "in furtherance of" requirement. Thus, reviewing for plain
error, we will not overturn the jury's verdict.
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In light of the jury instructions described above, in
convicting the defendants on the firearm charges, the jury must
have concluded that the weapon was not merely present at the scene,
but that it played an important role in the commission of the
offense. Thus, we reject the claim that the district court's
failure to give a "mere presence" instruction constituted
reversible error.
Finally, we reject the defendants' coaching argument.
The defendants contend that the district court improperly coached
the jury when it explained that "to carry a firearm during and in
relation to a drug trafficking crime means to move or transport the
firearm on one's person or in a vehicle or in a container during
and in relation to the crime." That this very language is part of
the First Circuit's pattern jury instructions emphasizes that,
rather than coaching, the district court was merely explaining in
general terms the charge against the defendants. See Pattern
Criminal Jury Instructions for the District Courts of the First
Circuit § 4.07 (1998).5 The defendants also allege that the
district court improperly coached the jury when it instructed that
the firearm "must have played some sort of important role in the
commission of the offense" and noted that "the role could have been
5
As we have noted previously, "although pattern instructions are
often helpful, their use is precatory, not mandatory." United
States v. Jadlowe, 628 F.3d 1, 17 n.29 (1st Cir. 2010) (internal
quotation marks and citations omitted).
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protection, . . . security," or some other role. This guidance
does not constitute coaching either. See United States v.
Hernández, 490 F.3d 81, 84 (1st Cir. 2007) ("It is unquestioned
that, when instructing a jury, a judge 'may explain, comment upon
and incorporate the evidence into the instructions in order to
assist the jury to understand it in light of the applicable legal
principles.'" (quoting United States v. Maguire, 918 F.2d 254, 268
(1st Cir. 1990))).
C. The Brady Claim
Gómez argues that the government committed a Brady
violation by failing to provide a fingerprint analysis of the
weapon found in Alverio's car. See Brady v. Maryland, 373 U.S. 83
(1963). The government responds that no fingerprint analysis was
ever performed, and thus there cannot have been a Brady violation.6
"Review of the district court's decision to deny a
defendant's motion for a new trial on the basis of alleged Brady
violations is for manifest abuse of discretion." United States v.
Brandao, 539 F.3d 44, 64 (1st Cir. 2008).
6
The government also contends that the district court properly
denied the defendant's motion under Federal Rule of Criminal
Procedure 33 for a new trial because the motion was untimely.
Because we resolve this issue on the merits and in favor of the
government, we need not address the timeliness argument.
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1. Background
At trial, during cross-examination by Gómez's attorney,
Agent Agreló testified as follows regarding fingerprints on the
weapon:
Q. Any fingerprints were taken from the
pistol?
A. A step was taken to take fingerprints
of the evidence.
Q. Were any fingerprints taken?
A. No. Steps were taken, but they were
not able to do the analysis.
Q. I didn't hear your answer, sir.
A. They were not done. They were not
performed, sir.
Q. You do have the equipment to do that
job; is that correct?
A. Our lab, yes, sir.
Q. You didn't feel it necessary to take
the fingerprints?
A. Like I said before, yes, sir, I
requested the test for the lab.
After hearing this testimony, neither defense attorney requested a
continuance in order to obtain a fingerprint analysis report for
the weapon. The Brady issue did not arise until more than ten
months later, when Gómez's attorney filed an emergency motion
requesting a new trial. The motion noted that, according to Agent
Agreló's testimony, fingerprinting tests of the gun were ordered
but never performed, and argued that the results of such tests were
exculpatory evidence and should have been disclosed pursuant to
Brady. The district court denied this motion. Gómez now appeals
the district court's determination that no Brady violation
occurred.
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At oral argument, we questioned counsel for the
government about the possibility that a fingerprint analysis report
existed. Counsel explained that she had never received notice from
the government lab confirming that a fingerprint analysis report
had not been completed, but that she also had never received any
such report. Because the government "'has a duty to learn of any
favorable evidence known to the others acting on the government's
behalf,'" Moreno-Morales v. United States, 334 F.3d 140, 146 (1st
Cir. 2003) (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)), we
requested that counsel for the government submit a proffer
regarding whether or not the government lab ever produced a
fingerprint analysis report on the machine gun. The proffer
confirmed that no fingerprint analysis was ever conducted; the
firearm was only examined for "operability."
2. Analysis
To establish a Brady violation, "a defendant must make
three showings. 'The evidence at issue (whether exculpatory or
impeaching) must be favorable to the accused; that evidence must
have been either willfully or inadvertently suppressed by the
government; and prejudice must have ensued.'" United States v.
Mathur, 624 F.3d 498, 503 (1st Cir. 2010) (quoting United States v.
Connolly, 504 F.3d 206, 212 (1st Cir. 2007)). "Although it hardly
bears mention, an implicit prerequisite of any Brady claim is that
favorable, material evidence actually exists." United States v.
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Garvin, 270 F. App'x 141, 144 (3d Cir. 2008). Here, because no
fingerprint analysis report existed, the government did not commit
a Brady violation in failing to turn over such a report. The
failure to create exculpatory evidence does not constitute a Brady
violation. See Arizona v. Youngblood, 488 U.S. 51, 59 (1988)
("[T]he police do not have a constitutional duty to perform any
particular tests."); see also United States v. Nguyen, 98 F. App'x
608, 609 (9th Cir. 2004) ("Brady does not require the government to
interview witnesses or otherwise create exculpatory evidence not
then in existence." (citing United States v. Monroe, 943 F.2d 1007,
1011 n.2 (9th Cir. 1991))).
III. Conclusion
For the reasons stated, we affirm both defendants'
convictions.
Affirmed.
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