United States v. Carlos Cruz

United States Court of Appeals
For the First Circuit

No. 02-1847

UNITED STATES OF AMERICA,

Appellee,

v.

JEAN CARLOS CRUZ,

Defendant, Appellant.

No. 02-1970

UNITED STATES OF AMERICA,

Appellee

v.

LUIS LUGO-VELEZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]
 Before
Selya, Circuit Judge,
Stapleton,* Senior Circuit Judge, and
Howard, Circuit Judge.

Rachel Brill, for appellant Luis Lugo-Velez.
Ignacio Fernández de Lahongrais, for appellant Jean Carlos
Cruz.
Thomas Klumper, Assistant United States Attorney with whom
H.S. Garcia, United States Attorney and Sonia I. Torres, Assistant
United States Attorney were on brief, for appellee.

December 19, 2003

*Of the Third Circuit, sitting by designation.
 HOWARD, Circuit Judge. Following a five-day trial, a

jury convicted co-defendants Luis Lugo-Velez and Jean Carlos Cruz

of, inter alia, possession of narcotics with intent to distribute

and possession of firearms -- including machine guns –- in

furtherance of a drug-trafficking scheme. These consolidated

appeals require us to decide (1) whether the district court erred

in various evidentiary rulings, and (2) whether the evidence was

sufficient to support the verdicts. Having carefully reviewed the

record, we affirm the convictions of both defendants.

I.

We recite the facts in the light most favorable to the

verdicts. See United States v. Echeverri, 982 F.2d 675, 676 (1st

Cir. 1993).

On October 15, 2001, Puerto Rico Police Agent Angel

Aviles parked an unmarked vehicle in front of dead-end Street 2A in

Toa Alta and began surveillance of an area known within the police

department to be a drug point. Agent Aviles immediately focused

his attention on three individuals –- later identified as Lugo,

Cruz, and Jose Gonzalez Bernard -- standing 40 feet away from him,

outside a bar known as "The Pub." Each man was carrying a firearm

on his waistline; in addition, Cruz had a "fanny pack" strapped

across his chest and appeared "ready to receive money from some

person."

-3-
 Agent Aviles next observed an unidentified man, who was

carrying money, approach Cruz from an unidentified vehicle that had

just arrived on the scene. After encountering Cruz, the individual

returned to his vehicle and drove away. The substance of this

meeting –- namely, whether there had been an actual exchange of

drugs or money -- was not witnessed.

At one point during his surveillance, Agent Aviles saw

Gonzalez disappear around the side of The Pub; when Gonzalez

reappeared, he and another unidentified individual were carrying a

pillowcase that had rifle barrels protruding from it.1 These men

then lifted the pillowcase, placed it into a nearby garbage can,

and, with the assistance of Lugo and Cruz, covered it with a

blanket and some trash. After witnessing these activities, Agent

Aviles immediately called for backup.

When the reinforcement agents arrived three to four

minutes later, backup Agent Luis Sales-Morales noticed that Cruz

was carrying a pistol on his waistline. During an ensuing chase,

Agent Sales saw Cruz toss his firearm into an overgrown lot.

Although the handgun was never recovered, Cruz was eventually

arrested as he tried to scale a fence. At the time of his arrest,

Cruz was carrying a nine-millimeter magazine, $526 cash, and a

1
The record is unclear as to whether these events occurred
before or after Cruz's encounter with the unidentified, money-
carrying individual.

-4-
fanny pack (strapped across his chest) containing substances that

later tested positive for cocaine base, heroin, and cocaine.

Meanwhile, backup Agent Nancy Mendez was pursuing

Gonzalez. When she caught him just outside The Pub, Gonzalez

attempted to draw his weapon. In response, Agent Mendez grabbed

his arm and was dragged inside The Pub. There, during her struggle

with Gonzalez, she observed Lugo for the first time; he was

standing behind the bar with a gun in his hand. Agent Aviles

testified as to how and when Lugo had entered The Pub: "I saw

Mendez who was going to arrest the defendants, and they started

running. At that moment, I started running, following her. So she

went into [The Pub] after, going after the defendants."

Gonzalez eventually surrendered and was taken outside The

Pub and arrested. Once outside, Agent Mendez told another agent to

go inside The Pub, arrest Lugo, and seize the firearm that she had

seen him conceal between a bottle rack and the bar.

Lugo was arrested without incident. Although no drugs or

weapons were found on his person, agents successfully recovered the

pistol –- a loaded nine-millimeter Smith & Wesson –- that Lugo had

hidden behind the bar.

The principal suspects having been apprehended, Agent

Aviles next seized the pillowcase from the garbage can. Inside the

pillowcase were two Romanian Arms rifles that, as an expert witness

later testified, had been converted into machine guns, as well as

-5-
an arsenal rifle, a pistol, and large amounts of ammunition. The

serial numbers on the two machine guns and the pistol had been

removed, and all four firearms were loaded.

On November 8, 2001, a federal grand jury returned an

indictment charging Lugo, Cruz, and Gonzalez with several offenses:

Count One alleged that the defendants, aiding and abetting each

other, knowingly possessed cocaine base with the intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §

2; Count Two alleged that the defendants, aiding and abetting each

other, knowingly possessed heroin with the intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count Three

alleged that the defendants, aiding and abetting each other,

knowingly possessed cocaine with the intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;2 Count Five

alleged that the defendants, aiding and abetting each other,

possessed a firearm in furtherance of a drug-trafficking scheme, in

violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2; Count Six

alleged that the defendants, aiding and abetting each other,

knowingly possessed a firearm shipped or transported in interstate

commerce and from which the manufacturer's serial number had been

obliterated or removed, in violation of 18 U.S.C. § 922(k) and 18

U.S.C. § 2; and Count Seven alleged that the defendants, aiding and

2
Count Four is not relevant to this appeal.

-6-
abetting each other, possessed a machine gun, in violation of 18

U.S.C. § 922(o) and 18 U.S.C. § 2.

On February 13, 2002, a joint trial began, at which Cruz

and Lugo were co-defendants.3 On February 20th, the jury convicted

both defendants on all counts. Thereafter, Cruz was sentenced to

concurrent prison terms of 63 months for Counts One, Two, and Three

and 60 months for Counts Six and Seven. Lugo was sentenced to

concurrent prison terms of 51 months for Counts One, Two, and Three

and 60 months for Counts Six and Seven. Additionally, because the

jury found that each defendant had possessed a machine gun in

furtherance of a drug-trafficking scheme, both Cruz and Lugo were

sentenced to 360 months of imprisonment for Count Five, to be

served consecutive to their other sentences.4 See 18 U.S.C. §

924(c)(1)(B).

These appeals followed.

3
Gonzalez pled guilty and is not a party to this proceeding.
4
The 360-month sentences imposed for Count Five were in
addition to, and separate from, the sentences imposed for Count
Seven. Count Five charged the defendants with possession of
firearms –- including machine guns -– in furtherance of a drug-
trafficking scheme. In convicting the defendants on Count Five,
the jury answered "yes" to all three of the following options: one
or more pistols; one or more rifles; one or more machine guns.

Count Seven charged the defendants with mere possession of
machine guns, which is made illegal under 18 U.S.C. § 922(o).

-7-
 II.

We are presented with two issues on appeal: (1) whether

the district court erred in various evidentiary rulings; and

(2) whether the evidence was sufficient to support the verdicts.

Given these separate issues, two standards of review

apply. First, we review a district court's decision to admit

evidence for abuse of discretion. See Larch v. Mansfield Mun.

Elec. Dept., 272 F.3d 63, 72 (1st Cir. 2001); see also Udemba v.

Nicoli, 237 F.3d 8, 14 (1st Cir. 2001) ("[A] trial court enjoys

considerable discretion in connection with the admission or

exclusion of evidence. . . ."). Second, in deciding sufficiency

challenges, "we review all the evidence, direct and circumstantial,

in the light most favorable to the prosecution, drawing all

reasonable inferences consistent with the verdict, and avoiding

credibility judgments, to determine whether a rational jury could

have found guilt beyond a reasonable doubt."5 United States v.

Baltas, 236 F.3d 27, 35 (1st Cir. 2001) (citations omitted); see

also United States v. Ruiz, 105 F.3d 1492, 1495 (1st Cir. 1997)

(noting that "we review de novo the defendants' challenge to the

5
Following the government's presentation of its case-in-chief,
both Cruz and Lugo moved unsuccessfully for judgments of acquittal
pursuant to Fed. R. Crim. P. 29. Each defendant thereafter
presented evidence in his own defense, thus waiving review of his
initial motion. See United States v. Ruiz, 105 F.3d 1492, 1495 n.1
(1st Cir. 1997) (citing United States v. Amparo, 961 F.2d 288, 291
(1st Cir. 1992)). Therefore, we review the evidence presented by
Cruz and Lugo during their cases-in-chief in the light most
favorable to the verdicts. See Ruiz, 105 F.3d at 1495 n.1.

-8-
evidentiary sufficiency of their convictions, construing the

evidence in the light most favorable to the government").

A. Evidentiary Rulings

Lugo contends that the district court improperly admitted

(1) "unduly prejudicial testimony concerning the presence of a drug

point on 2A Street near The Pub," and (2) "various untagged weapons

with obliterated serial numbers, [specifically] the two machine

guns."6 We find no abuse of discretion.

(1) The Drug-Point Testimony

Despite objection, Agent Aviles was allowed to testify at

trial as follows:

Q: Now, the young man to this side of the
table [Cruz], can you please tell us what, if
anything, was he doing, aside from the fact
that he had a weapon in his waist?

A: [Cruz] was standing there. He had like a
brown bag, and he was ready to receive money
from some person. I have knowledge that that
is the drug point of that sector.

Q: Excuse me. Before you go into anything
else --

COURT: Let him finish.

A: Personally myself I've arrested several
people at that location for violation of
weapons and drug laws.

Lugo argues that this testimony should have been excluded

because "[Agent] Aviles' assertions [regarding the 'drug point']

6
Cruz does not contest any evidentiary rulings.

-9-
were unsupported by statistics, personal knowledge, or details –-

and they were unduly prejudicial." As best we can tell,7 Lugo is

challenging the drug-point testimony on two separate bases: (a)

lack of foundation, in violation of Fed. R. Evid. 602; and (b)

unfair prejudice, in violation of Fed. R. Evid. 403. Neither is

convincing.8

First, contrary to Lugo's assertion, the government did,

in fact, present evidence sufficient to support a finding that

Agent Aviles had the requisite personal knowledge of the area's

history. See Fed. R. Evid. 602 ("A witness may not testify to a

matter unless evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter.

Evidence to prove personal knowledge may, but need not, consist of

the witness' own testimony."). Specifically, Agent Aviles

testified that he had been a member of the Drugs and Narcotics

Division of the Puerto Rico Police Department for approximately six

years, that he had been involved with approximately 80 or 90

investigations involving drug points, that he knew of other agents

who had made drug arrests outside The Pub, and that he himself had

7
Lugo's brief refers neither to the Federal Rules of Evidence
nor to case law.
8
Lugo also contends that the government should not have been
allowed to refer to the drug-point testimony in its closing
argument. Because we reject the underlying evidentiary challenges
to the drug-point testimony, this contention fails.

-10-
previously arrested an individual on drug charges outside The Pub.9

In addition, three other agents provided corroborating testimony

that the area in front of The Pub was known within the police

department to be a drug point. Given the testimony of these four

witnesses, the district court acted well within its discretion in

determining that there was an adequate foundation for Agent Aviles'

testimony.

We next consider whether the district court abused its

discretion in determining that the drug-point testimony was not

unduly prejudicial. See Fed. R. Evid. 403 ("Although relevant,

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice . . . ." (emphasis

added)); see also United States v. Pitrone, 115 F.3d 1, 8 (1st Cir.

1997) ("Virtually all evidence is prejudicial -– if the truth be

told, that is almost always why the proponent seeks to introduce it

–- but it is only unfair prejudice against which the law protects."

(emphasis retained)). According to Lugo, this testimony "allowed

[the jury] to infer impermissibly that[,] because Mr. Lugo was

arrested at a 'point,' he must have been involved in the drug trade

there."

9
On direct examination, Agent Aviles testified that he had
personally arrested "several people" at the drug point. However,
on cross examination, Agent Aviles indicated that he had only made
one such arrest.

-11-
 "Only rarely –- and in extraordinarily compelling

circumstances –- will we, from the vista of a cold appellate

record, reverse a district court's on-the-spot judgment concerning

the relative weighing of probative value and unfair effect."

Freeman v. Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir.

1988). This is not such a circumstance. Here, the drug-point

testimony was probative not only to explain Agent Aviles' presence

at the scene but also to corroborate the inference that Cruz and

Lugo were involved in a drug-trafficking scheme –- a scheme that

would be independently suggested by other evidence. So understood,

the district court could have concluded that the prejudice caused

by such testimony was not unfair; it was, instead, merely the

negative result of the testimony's probative value.

(2) The Machine Guns

Lugo next argues that the two machine guns were not

properly authenticated, see Fed. R. Evid. 901(a), and thus should

not have been admitted into evidence. We disagree.10

10
The record indicates that Lugo objected to the admission of
the second of these two weapons but not the first. Failure to
preserve a claim of error as to the admission of the first machine
gun does, of course, affect our standard of review. See United
States v. Roberts, 119 F.3d 1006, 1014 (1st Cir. 1997) ("[E]rrors
not objected to at trial will be reviewed by the appellate court
only when they are 'plain' and undermine the fundamental fairness
of the trial." (citations omitted)). However, because Lugo's
argument fails even under the more appellant-friendly abuse-of-
discretion standard discussed above, we need not provide a separate
analysis for each weapon.

-12-
 "Federal Rule of Evidence 901(a) requires the trial court

to determine if there is a 'reasonable probability' that the

evidence is what it is purported to be." United States v. Neal, 36

F.3d 1190, 1210 (1st Cir. 1994); see also United States v. Twitty,

72 F.3d 228, 232 (1st Cir. 1995) ("All that was required for

admission was evidence sufficient to permit a reasonable jury to

conclude that the guns were the same . . . .").

Here, two agents were called to authenticate the machine

guns. First, Agent Aviles testified to the following chronology:

(1) immediately following the arrests, he himself seized the

pillowcase from the garbage can; (2) the pillowcase's contents,

including two Romanian Arms rifles, were then taken to police

headquarters; (3) Agent Aviles next phoned Agent Rios from the

Bureau of Alcohol, Tobacco, and Firearms and requested that Rios

travel to headquarters to take possession of the weapons; and (4)

the weapons remained in his custody until Agent Rios arrived.

Second, Agent Rios testified (1) that, upon arriving at police

headquarters on October 15, 2001, he prepared a property receipt

(describing the contents of the pillowcase), which both he and

Aviles signed; (2) that he thereafter took possession of the

weapons; (3) that, two days later, on October 17, 2001, he prepared

a property-inventory form, on which the seized weapons were listed;

and (4) that the weapons remained in his custody from October 15th

through October 17th. Both men testified that the weapons sought

-13-
to be introduced at trial were, in fact, the weapons that earlier

had been in their respective custodies. We conclude that the

evidence was sufficient to lead a reasonable jury to the same

conclusion; accordingly, the admission of this evidence was not

erroneous.

B. Sufficiency of the Evidence

Lugo, but not Cruz, challenges the sufficiency of the

evidence with respect to his drug-trafficking convictions. See 21

U.S.C. § 841(a)(1) (criminalizing possession of narcotics with

intent to distribute); see also 18 U.S.C. § 2 ("Whoever commits an

offense against the United States or who aids [or] abets . . . its

commission is punishable as a principal."). Additionally, both

Lugo and Cruz argue that there was insufficient evidence to support

their respective convictions for possession of a firearm in

furtherance of a drug-trafficking scheme. See 18 U.S.C.

§ 924(c)(1)(A) (providing minimum sentences for such conduct); see

also Id. § 924(c)(1)(B) (mandating an enhanced sentence if the

firearm possessed by the individual in violation of 18 U.S.C. §

924(c)(1)(A) was a machine gun). We affirm the convictions.

(1) Lugo's Convictions under 21 U.S.C. § 841(a)(1)

Lugo contends that there was insufficient evidence to

support the jury's findings that he aided and abetted the

possession of cocaine base, heroin, and cocaine. Accordingly, he

-14-
asks us to set aside his convictions on Counts One, Two, and Three

of the indictment.

One who aids and abets a crime is punishable as a

principal. See 18 U.S.C. § 2; see also Nye & Nissen v. United

States, 336 U.S. 613, 618-19 (1949). Accordingly, we must affirm

Lugo's conviction if a reasonable jury could have found beyond a

reasonable doubt both that (1) the principal (here, Cruz) knowingly

possessed and intended to distribute drugs, and that (2) Lugo

"consciously shared that criminal design, associated himself with

it, and actively sought to ensure its success." United States v.

Arias, 238 F.3d 1, 4-5 (1st Cir. 2001) (citations and internal

quotation marks omitted); see also United States v. Campa, 679 F.2d

1006, 1010 (1st Cir. 1982) ("The elements that the government was

required to prove [to show that appellant aided and abetted the

possession of narcotics] were that appellant associated himself

with the venture, that he participated in it as something he wished

to bring about, [and] that he sought by his action to make it

succeed." (citations and quotation marks omitted)). We conclude

that the evidence was sufficient to prove all elements.

First, there was ample evidence to support a finding that

Cruz had possessed controlled substances with the intent to

distribute. Agent Aviles testified that, while conducting

surveillance of a known drug area, he had observed an unidentified,

money-carrying individual approach a man (later identified as Cruz)

-15-
who had a fanny pack strapped across his chest and who appeared

"ready to receive money." These observations were corroborated –-

indeed, confirmed –- when Agent Sales arrested Cruz and found

drugs, together with a substantial amount of cash, in a fanny pack

on Cruz's person.

Lugo argues that, "even if the evidence [was] sufficient

to determine that Cruz possessed controlled substances with the

intent to distribute, the evidence was entirely insufficient to

enable the conclusion that . . . Lugo aided and abetted in that

venture." Specifically, he notes that "[t]he prosecution simply

failed to overcome the presumption of innocence and produce

evidence that [he] was more than merely present in connection with

any controlled-substance offense." We are not persuaded.

While "mere presence at the scene of the crime" or "mere

association with conspirators" is not enough to establish guilt,

see United States v. Gomez-Pabon, 911 F.2d 847, 853 (1st Cir.

1990), "the mere presence defense is not so ubiquitous as to

envelop every drug-trafficking case in which the government lacks

direct evidence of a defendant's complicity." Echeverri, 982 F.2d

at 678. See also United States v. Flores-Rivera, 56 F.3d 319, 324

(1st Cir. 1995) ("Mere presence at the scene and close association

with those involved are insufficient factors alone; nevertheless,

they are relevant factors for the jury." (quoting United States v.

Sanchez, 961 F.2d 1169, 1174 (5th Cir. 1992)) (emphasis in

-16-
original)). "As we repeatedly have recognized, a jury is free to

rely on its common sense and may infer that criminal conspirators

do not involve innocent persons at critical stages of a drug deal."

United States v. DiMarzo, 80 F.3d 656, 661 (1st Cir. 1996)

(citations omitted). "[S]uch is not normally the conduct that one

would expect of conspirators engaged in conduct which by its nature

is kept secret from outsiders." United States v. Smith, 680 F.2d

255, 260 (1st Cir. 1982).

Here, of course, Lugo was more than merely present; the

evidence suggests that he was present for the important purpose of

protecting the money and the drugs. See Echeverri, 982 F.2d at 678

("[A] defendant's 'mere presence' argument will fail in situations

where the 'mere' is lacking."). See also United States v. Lema,

909 F.2d 561, 570 (1st Cir. 1990) ("[P]resence on a single occasion

may support a conviction for aiding and abetting if the surrounding

circumstances lead to a reasonable inference that the defendant

must have been a knowing participant." (citations omitted and

emphasis added)). For example, two separate officers testified

that Lugo was carrying a pistol, which, upon seizure, was found to

be fully loaded with a round of ammunition in its chamber. In

addition, Lugo was observed assisting Cruz and Gonzalez in the

concealment of the weapons contained within the pillowcase.

Moreover, all of these events were occurring in a known drug

area –- an area that Lugo promptly fled once police arrived -- and

-17-
there is nothing in the record to suggest that any of these weapons

were present for any other reason except to protect Cruz in the

event that the upcoming drug deals turned sour. Such evidence (and

the lack of an alternative explanation), coupled with the fact that

Cruz was arrested while carrying various drugs and a substantial

amount of cash, could lead a reasonable jury to conclude beyond a

reasonable doubt that Lugo associated himself with Cruz's illegal

venture, that he knowingly participated in it, and that, through

his actions, he actively sought to protect Cruz and thereby help to

ensure the success of the operation.

Nor are we persuaded by the argument that, because Agent

Aviles failed to testify that Lugo had been present during the

alleged drug exchange, the jury had no evidence on which to base

its inference that Lugo knew about Cruz's illegal behavior. While

such testimony would have been helpful in proving that Lugo had

aided and abetted Cruz, it was not, as discussed above, the only

mechanism through which the government could prove that Lugo had

the requisite knowledge.

(2) Defendants' Convictions under 18 U.S.C. § 924(c)(1)

Finally, we consider whether the evidence was sufficient

to support the jury's findings that, on October 15, 2001, the

defendants possessed firearms, including machine guns, in

furtherance of a drug-trafficking scheme.

-18-
 The applicable criminal statute provides that

(A) . . . 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 sentenced according to this subsection].

(B) If the firearm possessed by a person
convicted of a violation of this
subsection . . . is a machine gun . . ., the
person shall be sentenced to a term of
imprisonment of not less than 30 years.

18 U.S.C. § 924(c)(1); see also 18 U.S.C. § 2.

Due to the thirty-year prison term mandated by 18 U.S.C.

§ 924(c)(1)(B), both appeals focus primarily on the government's

machine-gun evidence. However, given additional evidence that Lugo

was carrying a pistol on his waistline, the machine guns are only

one variable in Lugo's 18 U.S.C. § 924(c)(1)(A) equation.11

Applying the statutory language to his particular appeal, then, we

must affirm the conviction if the evidence was sufficient to

support a finding that Lugo knowingly possessed (or aided and

abetted the possession of) either a sidearm weapon in furtherance

of the drug-trafficking scheme or a machine gun in furtherance of

the drug-trafficking scheme. The propriety of the thirty-year

11
Cruz was not charged with possession of the pistol that
allegedly was worn on his waistline and later discarded.
Accordingly, his sufficiency challenge concerns only those weapons
found in the pillowcase.

-19-
prison sentences depend, of course, exclusively on the sufficiency

of the machine-gun evidence.

Regarding the sidearm evidence, Lugo was seen carrying a

pistol by two separate officers. First, Agent Aviles testified

that, when he arrived on the scene, he noticed that Lugo "had a

black pistol [on his waistline]." Second, Agent Mendez testified

that, during her struggle inside The Pub with Gonzalez, she

observed Lugo "placing a black pistol in between the bottle rack

and the bar." This black pistol was subsequently seized by police

and ultimately admitted into evidence through the authentication

testimony of Agent Mendez. Based on this evidence, then, we have

no difficulty concluding that Lugo possessed a pistol.

Of course, given the text of the statute, merely

determining that Lugo was in possession of a sidearm is not enough

to support the conviction; we must also consider whether the weapon

was possessed "in furtherance of . . . a drug-trafficking crime."

18 U.S.C. § 924(c)(1)(A) (emphasis added). The jury reasonably

concluded that it was.

We have recently explained the "in-furtherance-of"

requirement:

When guns and drugs are found together and a
defendant has been convicted of possession
with intent to distribute, the gun, whether
kept for protection from robbery of drug-sale
proceeds, or to enforce payment for drugs, may
reasonably be considered to be possessed 'in
furtherance of' an ongoing drug-trafficking
crime.

-20-
United States v. Garner, 338 F.3d 78, 81 (1st Cir. 2003); see also

United States v. Luciano, 329 F.3d 1, 6 (1st Cir. 2003) ("Given the

close proximity of the firearms and the loaded magazines to the

significant stockpile of heroin, we have no difficulty concluding

that there was a sufficient nexus between the drug trafficking

crime and the firearms to sustain a conviction under [18 U.S.C.]

§ 924."); cf. United States v. Ceballos-Torres, 218 F.3d 409, 415

(5th Cir. 2000) ("Together, [factors such as 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, whether the gun is loaded, proximity to drugs or drug

profits, and the time and circumstances under which the gun is

found] reasonably support a finding that [the firearms] protected

his drugs and money against robbery. Possession of the [firearms]

was, therefore, in furtherance of drug trafficking.").

Here, while Lugo's weapon was not found "together" with

the drugs in a literal sense, the jury had reason to conclude that

Lugo's sidearm was possessed in furtherance of the drug-trafficking

scheme: the weapon was loaded, easily accessible, in close

proximity to the drugs, and its bearer was standing near a drug-

carrying individual in a known drug area. There is nothing in the

record to suggest that the firearm served any other purpose, and we

are not persuaded by Lugo's "mere presence" defense. See

discussion in II. B.(1), above.

-21-
 Because we conclude that there was sufficient evidence to

support a finding that Lugo possessed a sidearm in furtherance of

a drug-trafficking scheme, see 18 U.S.C. § 924(c)(1)(A), we will

not set aside his conviction on Count Five. Accordingly, regarding

Lugo, the machine-gun issue is relevant to Count Five only insofar

as proper sentencing is concerned. See 18 U.S.C. § 924(c)(1)(B).

Both Lugo and Cruz contend that the evidence was

insufficient to prove beyond a reasonable doubt that they had

(either actively or constructively) possessed a machine gun in

furtherance of the drug-trafficking scheme. We disagree.

Although there was no evidence that Cruz or Lugo had "any

direct or actual possessory interest" in the machine guns that were

contained within –- and protruding from –- the pillowcase, see

United States v. Torres-Maldonado, 14 F.3d 95, 102 (1st Cir. 1994),

the jury, having been properly instructed, could have concluded

that the defendants had constructive possession of the machine

guns.

"Constructive possession exists when a person 'knowingly

has the power and intention at a given time to exercise dominion

and control over an object either directly or through others.'"

Id. (quoting United States v. Garcia, 983 F.2d 1160, 1164 (1st Cir.

1993)); see also United States v. Akinola, 985 F.2d 1105, 1109 (1st

Cir. 1993) ("Constructive possession may be proved by demonstrating

defendant's power and intent to exercise ownership, dominion, or

-22-
control over the contraband itself, or over the area in which the

contraband was concealed. Constructive possession may be sole or

joint and may be achieved directly or through others." (citations

omitted)).

In this case, the jury had before it Agent Aviles'

testimony that, after Gonzalez had disappeared behind a building

and reappeared carrying a pillowcase from which rifle barrels were

protruding, Cruz and Lugo assisted Gonzalez in "cover[ing] the long

weapons" with a blanket. In addition, there was evidence that all

of this activity had occurred within a known drug area, that all

parties had been armed with pistols, that an unknown party had

arrived on the scene with money in his hand, and that Cruz had been

arrested with drugs and a substantial amount of cash on his person.

Assuming, as we must, the veracity of this evidence, the

jury was free to infer that the loaded "long weapons" had been

concealed within the garbage can as an added security measure.

There is nothing in the record to suggest that these firearms were

themselves for sale or that they served any purposes other than

increased protection and peace of mind. Accordingly, the jury

could have concluded that Cruz and Lugo had the power and intention

to retrieve the firearms if and when the upcoming drug transactions

turned sour; that is, the defendants constructively possessed the

machine guns in furtherance of the drug-trafficking scheme.

-23-
 We acknowledge that the jury's inferences of guilt are

not inevitable and that the sufficiency questions are arguably

close. However,

an appellate court plays a very circumscribed
role in gauging the sufficiency of the
evidentiary foundation upon which a criminal
conviction rests. The court of appeals
neither weighs the credibility of the
witnesses nor attempts to assess whether the
prosecution succeeded in eliminating every
possible theory consistent with the
defendant's innocence.

United States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997) (citation

omitted). Instead, "[w]e defer, within reason, to inferences

formulated by the jury in the light of its collective understanding

of human behavior in the circumstances revealed by the evidence."

United States v. Passos-Paternina, 918 F.2d 979, 985 (1st Cir.

1990) (citations omitted). So too here.

III.

For the reasons stated above, we affirm the convictions

of both defendants.

-24-