United States v. Wight

USCA1 Opinion









July 7, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________


No. 91-2212

UNITED STATES,

Appellee,

v.

PHILLIP A. WIGHT,

Defendant, Appellant.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]
___________________

____________________

Before

Cyr, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Fuste,* District Judge.
______________

____________________

Martin K. Glennon with whom Martin K. Glennon Professional
___________________ _________________________________
Association was on brief for appellant.
___________
Peter E. Papps, First Assistant United States Attorney, with whom
_______________
Jeffrey R. Howard, United States Attorney, was on brief for appellee.
_________________


____________________


____________________

_____________________

*Of the District of Puerto Rico, sitting by designation.

















FUSTE, District Judge. After a jury trial, appellant
______________

Phillip Wight was convicted of four counts of a multi-count

indictment charging both controlled substances and firearms

violations.1 On appeal, he argues that the evidence was

insufficient to support his firearms convictions under 18 U.S.C.

924(c)(1) (possession of a firearm during a drug trafficking

crime) and 18 U.S.C. 922(g)(1) (felon in possession of a

firearm). Finding that there is sufficient evidence to sustain

the convictions, we affirm.
affirm

I.
I.

Background
Background
__________

The facts giving rise to Wight's appeal, for the most

part, are not in dispute. Codefendant Edward Dunbar was

approached by an undercover police officer who sought to buy a

large quantity of marijuana. After several days of searching for

potential sources, Dunbar determined that appellant Wight could

supply the potential buyers ten pounds of marijuana. On March 9,

1990, law enforcement agents made arrangements to purchase the

controlled substance. Dunbar agreed to meet them at a Dunkin

Donuts parking lot in Manchester, New Hampshire. At the initial


____________________

1Count I of the indictment charged appellant Wight and other
codefendants with conspiracy to distribute marijuana in violation
of 21 U.S.C. 846; Count V charged appellant with possession
with intent to distribute marijuana in violation of 21 U.S.C.
841(a)(1); Counts VI and VII charged appellant with possession
of a firearm during a drug trafficking crime in violation of 18
U.S.C. 924(c)(1), and with possession of a firearm by a felon
in violation of 18 U.S.C. 922(g)(1). Count IX charged only
codefendant Fields with possessing the same firearm during a drug
trafficking crime, 18 U.S.C. 924(c)(1).

-2-
2














meeting, Dunbar and Wight agreed to sell the marijuana to the

agents later that day. After a telephone call between the

parties, they met at a Burger King parking lot, also in

Manchester. Wight arrived at the meeting in a van driven by

codefendant Michael Fields. Wight was seated in the front

passenger seat. Codefendant Dunbar arrived in a different

vehicle. An undercover officer approached the passenger side of

the van and asked Wight whether he had the marijuana. Wight

turned around, pointed to a large plastic bag located behind him

containing what appeared to be marijuana, and pulled out a small

plastic sandwich bag containing a drug sample. At that point,

the officer gave a signal and Wight, Dunbar, and Fields were

arrested.

At the moment of the arrest, law enforcement personnel

seized, but did not search, the van. The vehicle was taken to

the Manchester police station, where an inventory search was

conducted. During the search, police discovered an operable 9mm

Interdynamic pistol. The weapon was located underneath some

newspapers behind the two front seats of the van. The pistol was

in a partially unzipped case with the opening facing the

passenger seat of the van where appellant Wight sat.

Testimony at trial revealed that on the morning prior

to the drug sale, Dunbar had brought the weapon to the residence

shared by Wight and Fields. Dunbar gave the weapon to Fields,

instructing him that it was available for use if necessary.




-3-
3














Based on these facts Wight, Dunbar, and Fields were

indicted. While Dunbar pled guilty, Fields and Wight went to

trial. Both Fields and Wight were convicted of the controlled

substances counts; however, while the jury convicted Wight of the

two firearms violations, they acquitted Fields of possessing the

Interdynamic pistol during a drug trafficking crime. The two

firearms convictions form the basis for Wight's appeal.

II.
II.

Discussion
Discussion
__________

Appellant's sole argument on appeal is that the

evidence at trial was insufficient to support his convictions for

carrying a firearm during or in relation to a drug trafficking

crime2 and for being a felon in possession of a firearm in or

affecting interstate commerce.3

____________________

2The statute, 18 U.S.C. 924(c)(1), in relevant part, provides:

Whoever, during and in relation to any
crime of violence or drug trafficking crime
. . . for which he may be prosecuted in a
court of the United States, uses or carries a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime, be sentenced to
imprisonment for five years.

18 U.S.C. 924(c)(1).

3Section 922(g)(1) of Title 18 provides:

(g) It shall be unlawful for any person --

(1) 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.


-4-
4














In reviewing a sufficiency of the evidence challenge,

this court will look to the evidence as a whole, including

reasonable inferences drawn from the evidence, in the light most

favorable to the government, seeking to determine whether any

rational trier of fact could have found the elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
___________________

307, 319 (1979); United States v. Abreu, 952 F.2d 1458, 1466 (1st
______________________

Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 1695 (1992); United
____________ ______

States v. Sabatino, 943 F.2d 94, 97 (1st Cir. 1991); United
____________________ ______

States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991);
___________________________

United States v. Ruiz, 905 F.2d 499, 502 (1st Cir. 1990) (same
______________________

standard in Fed. R. Crim. P. 29 motion for judgment of

acquittal). It is not our role to weigh witness credibility and

we will resolve all such issues in favor of the government.

Batista-Polanco, 927 F.2d at 17; United States v. Passos-
_______________ ___________________________

Paternina, 918 F.2d 979, 983 (1st Cir.), cert. denied, 111 S.Ct.
_________ ____________

1637 (1990), and cert. denied, 111 S.Ct. 2809 (1991). Also,
___ ____________

evidence sufficient to convict may be entirely circumstantial,

with the factfinder remaining free to choose among reasonable

interpretations of the evidence. Batista-Polanco, 927 F.2d at
_______________

17; United States v. McDowell, 918 F.2d 1004, 1010 (1st Cir.
__________________________

1990); United States v. Boylan, 898 F.2d 230, 243 (1st Cir.),
________________________

cert. denied, ___ U.S. ___, 111 S.Ct. 139 (1990).
____________

A. Section 924(c)(1)
A. Section 924(c)(1)
_________________



____________________

18 U.S.C. 922(g)(1).

-5-
5














To establish a violation of 18 U.S.C. 924(c)(1), the

government had to prove beyond a reasonable doubt (1) that the

firearm "was 'related to,' or played some other role in, the

underlying crime"; and (2) that "the defendant must have 'used'

or 'carried' the firearm." United States v. Torres-Medina, 935
______________________________

F.2d 1047, 1048-49 (9th Cir. 1991). Wight admits that he

procured the marijuana at the request of Dunbar, was a passenger

in the van which carried the marijuana, and engaged in the

process of selling the drug to an undercover police officer at

the time of his arrest. There is no controversy as to the fact

that the Interdynamic 9mm pistol was found in the van used to

transport the drugs only one day after the pistol had been

delivered by Dunbar to the residence shared by Fields and Wight

to be used if necessary. While this constitutes sufficient

evidence to establish that the weapon was related to the drug

crime, Wight's challenge goes to whether there was sufficient

evidence to establish that he used or carried the firearm.

Specifically, he argues that the government failed to prove

beyond a reasonable doubt that he knew the weapon was in the van

and, without such proof, the section 924(c)(1) count should not

have been submitted to the jury. We disagree.

In Abreu, 952 F.2d at 1466, we found that "the
_____

government need not prove actual possession by the defendant,

only that the firearm was readily accessible for the defendant's

use" and that "[p]lacing a weapon nearby to protect a drug

operation comes within the definition of 'used'" for purposes of


-6-
6














section 924(c). See also United States v. Hadfield, 918 F.2d
___ ____ __________________________

987, 997-98 (1st Cir. 1990) (in a "drug fortress" context, "the

critical concern is the presence or absence of a facilitative

nexus"), cert. denied, ___ U.S. ___, 111 S.Ct. 2062 (1991);
_____________

United States v. Payero, 888 F.2d 928, 929 (1st Cir. 1989)
_________________________

(conviction sustained if possessor of a weapon intended it to be

available for possible use during or immediately following the

transaction); United States v. Featherson, 949 F.2d 770, 776 (5th
___________________________

Cir.) (sufficient for the government to show that the weapon

"could have been used" to protect or facilitate the drug

trafficking), cert. denied, 60 U.S.L.W. 3735 (1992); United
_____________ ______

States v. Young-Bey, 893 F.2d 178, 181 (8th Cir. 1990).
_____________________

Examining the circumstances surrounding the firearm's presence in

the van, we find that there is sufficient evidence in the record

to support a jury finding connecting the weapon to appellant

Wight's drug trafficking.

It is undisputed that Dunbar originally delivered the

firearm to the residence shared by Wight and Fields with the

understanding that the weapon was for their use if necessary.

Wight supplied the marijuana and played a principal role in the

drug transaction. One day later, the firearm was found in the

van used to transport the drug to the place where the drug

transaction was held. When found, the weapon was in a partially-

opened case, facing appellant and within his grasp. Given these

facts, it was reasonable for a rational trier of fact to infer




-7-
7














that appellant knew the weapon's location, had ready access to

it, and possessed it in the van to facilitate the drug deal.

Appellant also suggests that the jury's acquittal of

codefendant Fields with respect to Count IX for a section

924(c)(1) violation is further evidence that the government

failed to establish the necessary elements beyond a reasonable

doubt. The government argues that even if we were to view the

verdicts as inconsistent, based on the reasoning of United States
_____________

v. Powell, 469 U.S. 57 (1984), inconsistency is not a sufficient
__________

reason to set aside the verdict provided that sufficient evidence

supports the count of conviction. See also United States v.
___ ____ _________________

Bernal-Rojas, 933 F.2d 97, 100 (1st Cir. 1991); United States v.
____________ ________________

Bucuvalas, 909 F.2d 593 (1st Cir. 1990) (rationale of Powell
_________ ______

applied where two co-conspirators involved). We have found that

there was sufficient evidence to support appellant's conviction

pursuant to section 924(c)(1). In addition, the Wight and Fields

section 924(c)(1) verdicts are, in fact, consistent. Obviously,

the jury found that Wight's leadership role in the criminal

activity, coupled with the fact that the weapon appeared to be

more accessible to him than it was to Fields, made it more likely

that it was he, and not Fields, who sought the benefit of the

weapon's presence during the drug transaction. Appellant's

conviction for possessing a firearm during the commission of a

drug offense, 18 U.S.C. 924(c)(1), shall stand.

B. Section 922(g)(1)
B. Section 922(g)(1)
_________________




-8-
8














Appellant also challenges his conviction under 18

U.S.C. 922(g)(1). Under this statute, the government must

establish that: (1) appellant was previously convicted of an

offense punishable by imprisonment for a term exceeding one year;

and (2) he knowingly possessed a firearm in or affecting

interstate commerce. United States v. Ramos, No. 91-1702, slip
_______________________

op. at 4 (1st Cir. April 21, 1992); United States v. Smith, 940
______________________

F.2d 710, 713 (1st Cir. 1991); United States v. Rumney, 867 F.2d
_______________________

714, 721 (1st Cir. 1989) (sufficiency of the evidence challenge

to 18 U.S.C. App. (1982 Ed.) 1202(a)(1), the predecessor

statute to 922(g)), cert. denied, 491 U.S. 908 (1989). Wight
____________

admits that the government established the requisite predicate

offense and he does not challenge the firearm's relationship to

interstate commerce. Rather, Wight argues that his mere presence

in the van is, by itself, insufficient to establish the "knowing

possession" element of section 922(g)(1). We find sufficient

evidentiary support in the record for the jury determination that

appellant was a felon in possession of the firearm.

In the context of drug offenses, we have found that

"[k]nowledge may be inferred from possession." United States v.
________________

Lochan, 674 F.2d 960, 966 (1st Cir. 1982). Possession can be
______

either actual or constructive, sole or joint. United States v.
_________________

Vargas, 945 F.2d 426, 428 (1st Cir. 1991); Batista-Polanco, 927
______ _______________

F.2d at 19; United States v. Martinez, 922 F.2d 914, 923-24 (1st
__________________________

Cir. 1991); United States v. Latham, 874 F.2d 852, 861 (1st Cir.
_______________________

1989); United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st
________________________________


-9-
9














Cir.), cert. denied, 485 U.S. 1024 (1988). In order to show
_____________

constructive possession, the government must prove that the

defendant "had dominion and control over the area where the

contraband was found." United States v. Barnes, 890 F.2d 545,
________________________

549 (1st Cir. 1989), cert. denied, 494 U.S. 1019 (1990); Vargas,
____________ ______

945 F.2d at 428 (constructive possession found where defendant

was sole tenant and occupant of apartment immediately prior to

police raid); Lochan, 674 F.2d at 966 (reasonable to infer that
______

driver knowingly possessed cocaine found behind rear seat of

automobile owned by passenger). The government may show

constructive possession through the use of either direct or

circumstantial evidence; however, mere presence or association

with another who possessed the contraband is insufficient to

establish constructive possession. Batista-Polanco, 927 F.2d at
_______________

18; Barnes, 890 F.2d at 549.
______

While this court has upheld convictions for

violations of 18 U.S.C. 922(g)(1), United States v. Minnick,
_________________________

949 F.2d 8, 10 (1st Cir. 1991), cert. denied, ___ U.S. ___, 112
____________

S.Ct. 1698 (1992); United States v. Donlon, 909 F.2d 650, 655-56
_______________________

(1st Cir. 1990); United States v. Rumney, 867 F.2d 714, 719 (1st
_______________________

Cir. 1989)4, and has discussed constructive possession in the

context of 18 U.S.C. 922(h), United States v. Lamare, 711 F.2d
________________________

3, 5-6 (1st Cir. 1983), we have not passed upon a conviction



____________________

4Rumney was convicted as a felon in possession of a firearm under
18 U.S.C. App. 1202(a)(1). This section was repealed and
reenacted in broader form, and recodified at 18 U.S.C. 922(g).

-10-
10














under section 922(g)(1) based on a theory of constructive

possession.5 Today, we make explicit the obvious and find that

the element of "knowing possession" under section 922(g)(1) may

be established by proving that the defendant was in constructive

possession of a firearm. We hold that as long as a convicted

felon knowingly has the power and the intention at a given time

of exercising dominion and control over a firearm or over the

area in which the weapon is located, directly or through others,

he is in possession of the firearm. In so holding, we join other

circuits which have applied the concept of constructive

possession in the context of prosecutions under 18 U.S.C.

922(g)(1).6

____________________

5Constructive possession of a firearm has been discussed in First
Circuit cases in a different context. In United States v.
__________________
Parent, 954 F.2d 23 (1st Cir. 1992), we vacated a judgment of
______
conviction under section 922(g)(1) where the trial court erred in
giving the jury a supplemental instruction on constructive
possession without first informing the attorneys of the jury's
request. In the instruction, attached as an appendix to the
opinion, constructive possession was defined. 954 F.2d at 28.
In the second case, United States v. Jackson, 918 F.2d 236, 243
________________________
(1st Cir. 1990), we simply alluded to the fact that there was
overwhelming evidence of either actual or constructive possession
of the firearm in dismissing an alleged ineffective assistance of
counsel claim.

6United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992); United
_____________________ ______
States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992)
_____________________
(constructive possession where defendant knowingly has ownership,
dominion or control over contraband itself or over premises where
contraband is located), petition for cert. filed, 60 U.S.L.W.
_________________________
___, (U.S. Apr. 30, 1992) (No. _____); United States v. Moreno,
________________________
933 F.2d 362, 373 (6th Cir.), cert. denied, ___ U.S. ___, 112
____________
S.Ct. 265 (1991); United States v. Wainwright, 921 F.2d 833, 836
___________________________
(8th Cir. 1990); United States v. Sullivan, 919 F.2d 1403, 1430
__________________________
(10th Cir. 1990); United States v. Terry, 911 F.2d 272, 278 (9th
______________________
Cir. 1990); United States v. Garrett, 903 F.2d 1105, 1110 (7th
_________________________
Cir.) ("[c]onstructive possession exists when a person does not
_________________________________________________________
have actual possession but instead knowingly has the power and
_________________________________________________________________

-11-
11














While appellant Wight argues that the government

established only his mere presence in the vehicle where the

weapon was located, we think that the evidence, viewed in the

light most favorable to the government, allowed the jury to find

beyond a reasonable doubt that he was in constructive possession

of the weapon. First, it was established that the firearm was

taken to the residence he shared with Fields the day before the

drug transaction was scheduled to occur and then transferred to

the van sometime prior to the actual meeting. It would have been

entirely reasonable for the jury to infer that Wight, jointly

with Fields, exercised dominion and control over the house to

which the gun had been delivered and, accordingly, had knowledge

of the weapon's presence in the residence and its transfer to the

van. See United States v. Munoz-Romo, 947 F.2d 170, 177 (5th
___ ____________________________

Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3761 (U.S. Jan.
________________________

7, 1992) (No. 91-1593); United States v. Smith, 930 F.2d 1081,
_______________________

1085-86 (5th Cir. 1991). Second, it is disingenuous for

appellant to argue that he was merely present in the van driven

by Fields. The evidence established that Dunbar put Wight in

contact with the buyers because of his ability to supply ten

pounds of marijuana. Wight participated in the negotiations with

the buyers and, at the time of the drug deal, it was he who

transacted the sale. It was reasonable for the jury to infer

that he, and not Fields, was in charge of the operation and, as

____________________

the intention at a given time to exercise dominion and control
_________________________________________________________________
over an object, either directly or through others") (emphasis in
__________________________________________________
original), cert. denied, ___ U.S. ___, 111 S.Ct. 272 (1990).
____________

-12-
12














such, exercised control over Fields, the van, its contents, and

the firearm.

We think that the facts surrounding Wight's

participation and presence in the van are different from cases

where courts have absolved vehicle passengers of weapons charges.

See Blue, 957 F.2d at 107-08 (only evidence produced was weapon's
___ ____

discovery in vehicle and testimony that defendant "dipped his

shoulder" as police officer approached vehicle); United States v.
________________

Soto, 779 F.2d 558, 560 (9th Cir. 1986) ("[m]ere proximity of a
____

weapon to a passenger in a car goes only to its accessibility,

not to the dominion or control"), cert. denied, 484 U.S. 833
_____________

(1987). Here, there was ample evidence to establish that Wight's

presence in the van was for the purpose of drug trafficking and

it could be inferred from this fact that, for purposes of 18

U.S.C. 922(g)(1), he, as a convicted felon, exercised joint

dominion or control over the vehicle and its contents, including

the firearm. The gun was contained in a zippered case that was

partially open and readily accessible to Wight. The proximity of

the firearm to the passenger and the illegal cargo allowed the

fact-finder to convict of both possessing a firearm during the

commission of a drug offense, 18 U.S.C. 924(c)(1), and of

possessing the gun after a felony conviction, 18 U.S.C.

922(g)(1). See United States v. Wright, 932 F.2d 868, 881
___ ________________________

(10th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 428 (1991).
____________

Affirmed.
Affirmed
________




-13-
13