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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12419
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00066-JES-DNF-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BARRY FRANZ VERDIEU,
JOHN PETERSON ALEXIS,
Defendants - Appellants.
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Appeals from the United States District Court
for the Middle District of Florida
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(May 30, 2013)
Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
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Barry Verdieu and John Alexis appeal their convictions for carrying a
firearm in relation to, or possessing a firearm in furtherance of, a drug trafficking
crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. Verdieu and Alexis each
argue that the evidence at trial was insufficient to sustain their convictions for this
offense.
I. FACTS AND PROCEDURAL HISTORY
On June 22, 2011, Verdieu rented a Chevrolet Traverse sport utility vehicle
from Enterprise Car Rental in West Palm Beach, Florida. Two days later, on June
24, Verdieu and Alexis drove the Traverse to the Edison Mall in Fort Meyers
where Alexis had arranged to purchase 3,000 oxycodone pills for $10,500 from a
confidential informant (CI) cooperating with the Drug Enforcement Administration
(DEA). DEA agents and local law enforcement officers were waiting for Verdieu
and Alexis at the mall.
After parking the Traverse in the mall parking lot, Verdieu and Alexis
entered the mall, where Alexis met the CI in the food court. When Alexis failed to
persuade the CI to conduct the drug sale in the parking lot, Alexis and Verdieu
returned to the Traverse so that Alexis could retrieve the cash. Verdieu then
remained in the car while Alexis went back to the food court to finish the
transaction.
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At the food court Alexis and the CI prepared to exchange “a big wad of
cash” for a bag of pills. The transaction was interrupted when Alexis “received a
phone call from someone . . . and abruptly got up and . . . left.” Alexis returned to
the Traverse, where Verdieu was waiting in the driver’s seat, and got in the front
passenger side.
At this point DEA agents moved in and arrested the pair. As agents were
handcuffing Verdieu, one asked him if he had any guns. Verdieu responded that
he had one in the back seat of the Traverse, in a laptop computer bag. Although
the agents did not find the gun in the back seat or the laptop bag, they found a fully
loaded .38 caliber semi-automatic pistol between the driver’s seat and the front
passenger seat, in the Traverse’s open center console. The firearm was located
alongside a partially unwrapped sandwich, an open bottle of water, a camera case,
a phone charger, and a CD. The gun was positioned in such a way that it could be
easily withdrawn from the Traverse’s console by either the driver or the front
passenger. The agents also found $10,500 in Verdieu’s pants pocket.
Verdieu and Alexis were each charged with conspiring to possess and
distribute oxycodone, in violation of 21 U.S.C. § 846, and carrying a firearm in
relation to, or possessing a firearm in furtherance of, a drug trafficking offense, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. Alexis pleaded guilty to the
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conspiracy charge, but proceeded to trial on the gun charge; Verdieu proceeded to
trial on both counts.
At trial, following the government’s case-in-chief, the defendants each
moved for judgments of acquittal on their respective firearm charge, arguing that
the government failed to produce sufficient evidence to show that the pistol was
more than “coincidentally” present in the Traverse. The district court denied the
motion and the jury convicted each defendant of all counts. On its special verdict
form, the jury indicated that it found Verdieu and Alexis guilty of violating
§ 924(c) both because the pair carried a firearm in relation to their attempt to
purchase oxycodone, and because they possessed a firearm in furtherance of their
attempt to purchase oxycodone. This appeal followed.
II. DISCUSSION
On appeal, Verdieu and Alexis each argue that the evidence was insufficient
to sustain the jury’s verdicts on their firearm convictions because the government
failed to “show some nexus between the firearm and the drug selling operation.”
“We review de novo a District Court’s denial of judgment of acquittal on
sufficiency of evidence grounds, considering the evidence in the light most
favorable to the Government, and drawing all reasonable inferences and credibility
choices in the Government’s favor.” United States v. Capers, 708 F.3d 1286, 1296
(11th Cir. 2013). “A jury’s verdict cannot be overturned if any reasonable
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construction of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.” United States v. Herrera, 931 F.2d 761, 762
(11th Cir. 1991). “The evidence need not be inconsistent with every reasonable
hypothesis except guilt, and the jury is free to choose between or among the
reasonable conclusions to be drawn from the evidence presented at trial.” United
States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989). But “[w]hen the
government relies on circumstantial evidence, reasonable inferences, not mere
speculation, must support the conviction.” United States v. Mendez, 528 F.3d 811,
814 (11th Cir. 2008).
Section 924(c) states, in pertinent part, “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 subject to enhanced
penalties enumerated in the statute. 18 U.S.C. § 924(c)(1)(A). “Thus, the
enhanced penalties are triggered in one of two ways: under the ‘during and in
relation to . . . uses or carries’ prong, or under the ‘in furtherance of . . . possesses’
prong.” United States v. Haile, 685 F.3d 1211, 1217 (11th Cir. 2012) (quoting
§ 924(c)(1)(A)), cert. denied, 133 S. Ct. 1723 (2013) & 133 S. Ct. 1724 (2013).
Because our de novo review satisfies us that the evidence was sufficient to convict
Verdieu and Alexis under the “in furtherance of . . . possesses” prong, we do not
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consider whether it was also sufficient to convict them under the “during and in
relation to . . . uses or carries” prong. See § 924(c)(1)(A).
To prove that a defendant possessed a firearm “in furtherance of” a drug
trafficking crime, “the prosecution [must] establish that the firearm helped,
furthered, promoted, or advanced the drug trafficking.” United States v. Timmons,
283 F.3d 1246, 1252 (11th Cir. 2002). This requires “a showing of some nexus
between the firearm and the drug selling operation.” Id. at 1253 (quotation marks
omitted). To determine whether such a “nexus” exists, we consider a non-
exclusive list of factors, including:
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 (legitimate or illegal), whether the gun is
loaded, proximity to the drugs or drug profits, and the time and
circumstances under which the gun is found.
Id. (quotation marks omitted).
Verdieu and Alexis argue that the government failed to prove a nexus
between the gun found in the center console and the oxycodone deal because
“mere presence of a firearm at the time of the underlying federal crime is
insufficient to support a [§] 924(c) conviction.” While we certainly agree that as a
matter of law proof of “mere presence of a firearm in an area where a criminal act
occurs” is not sufficient to prove a violation of § 924(c), Timmons, 283 F.3d at
1252 (quotation marks omitted), here the evidence went beyond proof of “mere
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presence.” Specifically, the loaded .38 caliber semiautomatic pistol was found in
the rented Traverse’s center console, within inches of where Verdieu and Alexis
were sitting at the time of their arrests, readily accessible to each. Verdieu, sitting
in the driver’s seat, was found with $10,500 in his pocket, the precise amount
negotiated for the 3,000 oxycodone pills that Alexis intended to purchase from the
CI. Alexis, sitting in the passenger seat, had repeatedly attempted to persuade the
CI to leave the food court and to conduct the drug transaction outside, where
Verdieu and the pistol were waiting. The jury heard testimony that when DEA
agents arrested the pair, the center console was open and the firearm was located
next to a partially unwrapped sandwich and an opened bottle of water. And
although Verdieu lawfully purchased the firearm in September 2010, the jury also
learned that Verdieu’s concealed weapon permit was expired at the time of
purchase, and at the time of this offense.
In sum, this evidence is sufficient to establish a nexus between the pistol and
the drug transaction because a reasonable jury could conclude that Alexis intended
to lure the CI to the parking lot, where Verdieu was waiting with the gun. In turn,
the evidence is sufficient to prove that Verdieu and Alexis possessed the pistol in
furtherance of their conspiracy to possess and distribute oxycodone. See Haile,
685 F.3d at 1219–20; Timmons, 283 F.3d at 1253. On this record, the district
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court properly rejected their motions for judgment of acquittal, and we will not
reverse their § 924(c) convictions here.
III. CONCLUSION
For these reasons, Verdieu’s and Alexis’s § 924(c) convictions are
AFFIRMED.
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