United States Court of Appeals
For the First Circuit
No. 06-1912
UNITED STATES OF AMERICA,
Appellee,
v.
ANTONIO MARIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Leslie W. O'Brien for appellant.
Paul Hart Smyth, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellant.
April 11, 2008
HOWARD, Circuit Judge. Appellant Antonio Marin ("Marin")
was convicted by a jury of possessing a firearm in furtherance of
drug trafficking, in violation of 18 U.S.C.§ 924(c).1 On appeal,
Marin claims that the evidence was insufficient to prove that the
firearm was possessed "in furtherance of" drug activities. He also
asserts the trial judge committed reversible evidentiary errors.
We affirm.
I. FACTUAL BACKGROUND
We recite the facts in the light most favorable to the
jury's verdict. United States v. Isler, 429 F.3d 19, 22 (1st Cir.
2005). During the fall of 2004 the United States Drug Enforcement
Administration ("DEA") used a cooperating witness known as "Gijo"
to make a series of cocaine purchases from Marin in Springfield,
Massachusetts. The first occurred in November, when Gijo purchased
50 grams of cocaine from Marin for $1500 outside a grocery store.
After the sale, Marin drove to his home. A month later Gijo
purchased an additional "100 to 125" grams of cocaine from Marin
for $3700. Marin drove from his home to a car wash to make this
second sale. A third sale, in February 2005, involved 50 grams for
1
Prior to trial, Marin pled guilty to five drug-related charges
contained in the same seven-count indictment as this charge. After
trial, on grounds not relevant to this appeal, the district court
granted Marin's motion for judgment of acquittal on a charge of
possession of a firearm and ammunition by a convicted felon. Marin
was sentenced to five concurrent 60-month terms on the drug counts,
and to an additional 60 months on the firearm conviction to be
served consecutively.
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$1500. Again, Marin arrived at the sale location--a restaurant--
from his home.
The DEA arrested Marin on February 24, 2005, the day
after the third controlled cocaine purchase. In order to make the
arrest, the DEA had Gijo order 100 grams of cocaine from Marin, who
drove from his home to the arranged sale point. Marin was arrested
upon his arrival, after DEA agents trapped his car with their own
vehicles. Although Marin got out of his car brandishing what was
described as a two or three foot long billy club, he dropped the
club at the demand of approaching agents. A clear plastic bag
containing 100 grams of cocaine was found in his pocket.
Simultaneous with the arrest, other DEA agents executed
a search warrant at Marin's apartment. In a bedroom nightstand,
they found 70-75 grams of cocaine, a digital scale and packaging
materials. They also found, under the bed mattress, a loaded .38
caliber semiautomatic handgun with a defaced serial number and a
spare clip loaded with .38 caliber ammunition. The search yielded
$1500 in cash, discovered in a bedroom bureau. Agents also found
roughly 700 grams of cocaine in a plastic bucket in the basement.
In post-arrest interviews, Marin admitted to DEA agents
that all of the cocaine, the gun and ammunition were his, as was
the bedroom in which the gun, ammunition and the smaller amount of
the cocaine were discovered. He told the agents he had purchased
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the gun from a cocaine dealer approximately six months prior to his
arrest.
The cocaine recovered in Marin's bedroom and basement
formed the basis for the charge of possession with intent to
distribute, which, in turn, was the predicate drug crime for the
firearm count on which Marin was ultimately convicted and which he
now appeals.
II. DISCUSSION
1. Sufficiency of the Evidence
Marin argues, as he did at trial,2 that the government's
evidence was insufficient as a matter of law to prove that he
possessed the recovered firearm "in furtherance of" his admitted
drug dealing. Specifically Marin notes the uncontroverted evidence
that he was not seen carrying a gun at any of the arranged deals.
Thus, he argues, the only connection between the firearm and the
cocaine was the gun's "mere presence" in the bedroom, which, Marin
points out, did not even hold the lion's share of the stash. While
Marin accurately recounts the two facts he relies on -- he was not
seen carrying the gun during the subject drug deals, and the
significantly greater share of the cocaine was located in another
part of the residence -- his legal conclusion misses the mark by a
wide margin.
2
Marin's trial defense was effectuated through cross-examination of
government witnesses, as he neither testified nor called witnesses
on his behalf.
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In analyzing Marin's sufficiency claim,3 we must affirm
the conviction if after de novo review of the evidence taken in the
light most favorable to the government, we conclude that a rational
factfinder could find that the government proved the essential
elements of its case beyond a reasonable doubt. United States v.
Stark, 499 F.3d 72, 79 (1st Cir. 2007).
Marin was convicted of violating 18 U.S.C. § 924(c)(1),
which prescribes various mandatory punishments for "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 . . . ." To obtain a conviction, the
government must prove beyond a reasonable doubt 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. Delgado-Hernandez, 420 F.3d
16, 24 (1st Cir. 2005). Here, there is no dispute that Marin
committed a drug trafficking crime and knowingly possessed a
firearm. Marin's appellate argument is aimed at the "in
furtherance of" requirement.
The "in furtherance of" element does not have a settled,
inelastic, definition. See id. (meaning is "fluid"); United States
3
To be precise, Marin claims the district court erred in denying
his post-trial motion for judgment of acquittal. For our purposes,
there is no analytical distinction. United States v. Hernandez,
218 F.3d 58, 64 (1st Cir. 2000).
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v. Felton, 417 F.3d 97, 104 (1st Cir. 2005), cert. denied, 547 U.S.
1048 (2006) (meaning is not "well-settled"). Our cases, however,
do provide sufficient guidance for the task here. In the context
of a drug trafficking predicate, we 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. United States v. Grace, 367 F.3d 29, 34-35 (1st Cir. 2004);
United States v. Garner, 338 F.3d 78, 81 (1st Cir. 2003). For
example, we have held that possession of a firearm to protect drugs
or sales proceeds can establish such a nexus. United States v.
Robinson, 473 F.3d 387, 399 (1st Cir. 2007); Delgado-Hernandez, 420
F.3d at 31-32; Garner, 338 F.3d at 81.
We have also analyzed "in furtherance of" evidence from
both subjective and objective standpoints. Felton, 417 F.3d at
104-5.4 In applying an objective analysis, we have often
considered the proximity of the firearm to the contraband. In
Grace, for example, we found evidence sufficient where an unloaded
firearm was found in the same residence as drugs and sales
proceeds. 367 F.3d at 34-35. And in United States v. Luciano, 329
F.3d 1 (1st Cir. 2003), we affirmed a conviction where the firearms
4
In Felton, we reversed the district court's judgment of acquittal
of defendants who had been convicted by a jury of violating section
924(c). Although the predicate offense in Felton was bomb-making,
not drugs, there is no principled reason for a different analysis.
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were located in a crawl space also containing heroin and drug paraphernalia.
Marin argues that the objective evidence "consisted only"
of the presence of the handgun a few feet from an amount of drugs
far smaller than what was found in the basement. This, he claims,
in combination with the fact that there was no evidence of him
carrying the gun while actually engaging in the drug deals, proves
no more than "mere presence" of the firearm, insufficient to
support a conviction. But there was much more to the evidence,
which, taken in sum, supports a different conclusion. As noted,
DEA agents discovered a loaded gun in Marin's bedroom where it
would be easily accessible to him if surprised in the night. The
weapon was found, with a loaded spare clip, under Marin's mattress,
in the same room as -- and only a few feet from -- 75 grams of
cocaine and a digital scale, and in the same house as an additional
700 grams of cocaine and proceeds from drug sales.5 We have little
doubt that a jury could have reasonably inferred from this evidence
that Marin possessed the firearm to protect his drug trafficking
activities. Moreover, the jury also heard testimony that drug
traffickers often possess firearms for protection of their
trafficking activities. And, as we have noted, "The cases dealing
with weapons used in drug dealings regularly uphold 'in
furtherance' findings based on a weapon's capacity to counter
5
The record reflects that Marin forfeited the $1500 as drug
proceeds in connection with his plea agreement.
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resistance. Actual use may be more common in drug deals, but there
is no requirement that actual use be proved." Felton, 417 F.3d at
105 (footnote omitted).
Our conclusion is no different with respect to the
evidence of Marin's subjective intent to possess the firearm "in
furtherance of" his drug trafficking. Where direct evidence of
subjective intent is lacking, the jury is free to infer intent from
objective circumstances. Id. Here, in addition to the objective
facts as noted above -- the proximity of the gun to the cocaine,
cash and paraphernalia, as well as it being easily accessed by
Marin when he was otherwise vulnerable -- the facts that the gun
had an obliterated serial number and that Marin admitted that he
purchased the gun from another cocaine dealer also support an
inference that he subjectively intended to possess the weapon in
furtherance of the underlying drug crime. Accordingly, the
district court did not err in denying Marin's motion for judgment
of acquittal.
2. Evidentiary Issues
a. Agent Barron's Testimony
Appellant next argues that the district court improperly
allowed DEA Agent John Barron to testify that, during an interview
of Marin, he did not ask Marin why he had the gun because "it was
obvious." Marin claims this was improper expert testimony in
violation of Fed. R. Evid. 702. We disagree.
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The testimony came during re-direct examination. On
cross-examination by defense counsel, Barron had testified that
Marin never admitted to him that the gun recovered in his bedroom
was related to drug dealing. He also described Marin as forthright
during two conversations with him. The testimony was as follows:
Q: [H]e never admitted that the gun you found
had anything to do with the drugs that he was
selling, is that correct?
A: That's correct.
. . .
Q: And your interview of him involved
questioning him about the gun both at the
Springfield Police Station then on a separate
day here at the courthouse before his
arraignment, correct?
A: Yes.
Q: And during both of those times he did not
tell you that the gun had anything to do with
the drugs that he was selling, correct?
A: Yes.
The following exchange ensued on re-direct examination:
Q: Agent Barron, in your two interviews with
the defendant, did you ask him why he
possessed the Lorcin firearm and ammunition?
A: No, we did not.
Q: Why not, Sir?
A: It was obvious to us for the same reason
that we didn't -
Defense Counsel: Objection, Your Honor, move
to strike.
Court: I'm going to overrule the objection.
This is the witness's [sic] reason and I think
it's fair to get into that.
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Q: Please continue, Sir.
A: For the same reason, we didn't ask him why
he possessed seven one-hundred gram packages
of cocaine or the smaller packages that were
in his night stand. We felt we knew why he
possessed the firearm.
The first bone of appellate contention is the
government's argument that Marin did not preserve an objection
based on improperly admitted expert testimony because of the
general nature of the objection lodged at trial, as noted above.
As such, the government argues, our review is only for plain error,
as opposed to the more generous (to the appellant) abuse of
discretion standard. We need not resolve this preliminary issue,
however, as we find the admission of Agent Barron's testimony to be
proper regardless of the standard of review.
We reject Marin's claim that Barron's statement
constituted expert testimony, subject to Rule 702. Instead, we
view the re-direct testimony at issue as an acceptable response to
the defense "opening the door," where the trial court allowed the
government to "clarif[y] an issue which the defense opened up on
cross-examination." United States v. Catano, 65 F.3d 219, 226 (1st
Cir. 1995). Catano was a drug case in which the defense used
cross-examination to undermine a cooperating prosecution witness'
credibility by suggesting that he barely knew the defendant. Id.
at 225. On re-direct examination, over defense objections, the
government elicited testimony that the witness knew the defendant
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from prior drug transactions. The district court allowed the
testimony, ruling that the cross-examination had opened the door by
suggesting (inaccurately) that a meeting between the witness and
the defendant had been an isolated event. Id. We affirmed,
finding no abuse of discretion in allowing the government to
explore the past dealings of the witness and the defendant. Id. at
226. The same rationale applies here, where the government sought
to clarify the context of Marin's statements - or more precisely,
the absence of a specific statement to Barron by pointing out that
Barron never asked Marin why he owned the weapon in question, and
why he didn't ask. As we noted in Catano, failure to allow such
limited re-direct testimony could allow "litigants to create
misleading impressions, secure in the knowledge that the other side
was barred from disabusing the jury." Id. at 226. Here, Marin's
cross-examination of Barron, standing alone, could have left the
impression that Marin had denied drug-related firearm ownership,
without the defense offering any supporting evidence. The re-
direct examination of Barron yielded an appropriate response. His
testimony that "it was obvious" to him that the gun was related to
the drug business put his actions -- and Marin's statements -- in
their appropriate contexts.
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b. "Other act" / Character evidence
The appellant next argues that the trial court
impermissibly admitted evidence: that he possessed a club at the
time of his arrest; and that mementos from the movie "Scarface" --
a film in which drugs and violence are both prominent -- were found
in his home. Marin argues that these were admitted to prove a
propensity for violence, in violation of Fed. R. Evid. 404(b). We
will address each contention in turn. In light of appellant's
trial objection, we review the admission of the "billy club"
testimony for abuse of discretion. United States v. Flemmi, 402
F.3d 79, 86 (1st Cir. 2005).
Agent Barron testified on direct examination that when
agents' unmarked vehicles prevented Marin from driving away from
his home, Marin exited his vehicle holding a billy club. The trial
judge overruled the defense objection, accepting the government's
argument that the testimony about the club was relevant to the
steps that Marin would take to protect his drug dealing business,
since he had 100 grams of cocaine with him at the time of his
arrest. In our view, the trial court did not abuse its discretion.
As an initial matter, we agree with the government that
Marin's brandishing the billy club was not inadmissible Rule 404(b)
"bad act" evidence. Instead, it was a part of the drug trafficking
offenses for which he was charged (and later pled guilty), from
which the jury could infer that Marin would arm himself to protect
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his business. See United States v. Pierre, 484 F.3d 75, 84-5
(evidence of prior bad act was probative of charged crime itself,
thus defeating 404(b) claim); United States v. Rodriguez-Estrada,
877 F.2d 153, 156 (1st Cir. 1989) (when subject incident occurs
close in time and is highly relevant to the charged conduct, "the
argument for admissibility is powerful"). The jury was entitled to
infer from Marin's club-wielding that he knew drug dealing could be
dangerous, and he thus had a motive to arm himself. Both knowledge
and motive are exceptions to inadmissibility under Rule 404(b). We
also reject appellant's passing assertion that the evidence was
unfairly prejudicial. While Rule 403 allows exclusion of relevant
evidence "if its probative value is substantially outweighed by the
danger of unfair prejudice," we find no such unfair prejudice here.
The final point related to the club is the government's
reference to it in closing argument. The prosecutor said, " . . .
and when they arrested him you get your first real glimpse of the
defendant's character, how he acted when he felt threatened . . .
or he felt his drug supply was threatened . . . ." While, as the
government acknowledges, the use of the evidentiary term-of-art
"character" in such circumstances was ill-advised, we are satisfied
that, in context, it is not grounds for reversal. Marin's defense
was that his gun possession had nothing to do with his drug
business. The government was entitled to argue that weapons were
part of his business.
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We need not dwell long on the "Scarface" evidence.6
First, it was the appellant who first referenced it in his opening
statement, in support of the defense theory that Marin was simply
"interested in guns." Next, the evidence was introduced by the
government without objection, except to prevent the government's
use of it to show a propensity to emulate the movie character.
Accordingly, the district judge allowed the government to use the
evidence solely to rebut the "casual interest" argument because of
the reference made by the defense. We agree with the defendant to
the extent that, in some circumstances, the government's reliance
on the "Scarface" evidence might be improper. Here, however, there
was some probative value to the evidence, that of rebutting a
defense theory which had been previewed to the jury in the opening
statement, that relied on similar evidence.7 We find no plain
error.
We have reviewed the appellant's remaining evidentiary
arguments and find them without merit.
Affirmed.
6
The evidence consists of a "shadowbox" containing a picture of
actor Al Pacino portraying a violent drug dealer, with a replica
gun, cigar and money under the photo; and a poster of Pacino aiming
a machine gun.
7
Marin briefly alludes to the "Scarface" evidence being unfairly
prejudicial. In view of the evidence's legitimate use and in light
of the other evidence in the case, we cannot say that the danger of
unfair prejudice substantially outweighed the probative value of
the evidence. See Fed. R. Evid. 403.
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